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Home , Afghan Files (Australia), Alan Tudge, Andrew Hastie, Andrew Probyn, Balibo Five, Bernard Collaery

SUPPRESSION DEFAMATION DECRYPTION METADATA IMPUNITY

THE PUBLIC’S RIGHT TO KNOW THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN IN 2019 THE PUBLIC’S RIGHT TO KNOW

CONTENTS FOREWORD PAUL MURPHY 3

IN THEIR OWN WORDS 5 THE MEAA REPORT INTO THE STATE OF ATTITUDES ABOUT PRESS FREEDOM PRESS FREEDOM IN RESULTS FROM MEAA’S ANNUAL PRESS FREEDOM SURVEY MARK PHILLIPS 10 AUSTRALIA IN 2019 THE LAW THE YEAR IN AUSTRALIAN MEDIA LAW - PETER BARTLETT & TESS MCGUIRE 12 Written and edited by SHARING ABHORRENT VIOLENT MATERIAL 14 Mike Dobbie SUPPRESSION ORDERS 17 WHY WE COULDN’T TALK ABOUT THE PELL TRIALS - 26 MEAA thanks the MICHAEL DOUGLAS & JASON BOSLAND contributors to this SUPPRESS OR NOT? 28 report: WHISTLEBLOWER PROTECTION 29 Peter Bartlett THE WHISTLEBLOWER DILEMMA - ANNA LANE & EMILY HOWIE 34 Jason Bosland Michael Douglas DEFAMATION 37 Peter Greste Alexandra Hearne NATIONAL SECURITY Emily Howie INFORMATION WARRANTS 42 Anna Lane DECRYPTION 45 Tess McGuire ESPIONAGE AND FOREIGN INTERFERENCE 48 Colin Peacock Mark Phillips THE INDUSTRY REDUNDANCIES 50 Design by GENDER 52 Blair Pagan Design CULTURAL AND RELIGIOUS DIVERSITY 55 120 Edith St, Leichhardt, NSW 2040. DIGITAL PLATFORMS 59

Cover image: GOVERNMENT R.J. Seymour PUBLIC BROADCASTING 62 MEDIA OWNERSHIP 70 MEAA thanks Fairfax ASYLUM SEEKERS 74 Photos for the use of REPORTING DEMOCRACY 76 its images. SAFETY Responsibility for WORKPLACE 78 election comment, IMPUNITY 81 and authorised by: Paul Murphy NINE AUSTRALIAN MURDERED 81 chief executive, THE AMPATUAN MASSACRE OF 32 JOURNALISTS - MIKE DOBBIE 87 Media, Entertainment TACKLING IMPUNITY 92 & Arts Alliance 245 Chalmers Street, THE ASIA-PACIFIC Redfern, NSW 2016 PRESS FREEDOM IN NEW ZEALAND - COLIN PEACOCK 95 PRESS FREEDOM IN THE ASIA-PACIFIC - ALEXANDRA HEARNE 99 THE MEDIA SAFETY AND SOLIDARITY FUND 105 FUTURE A MEDIA FREEDOM ACT - PETER GRESTE 106 THE WAY FORWARD - MIKE DOBBIE 108

REFERENCES 110

2 | 2019 PRESS FREEDOM REPORT as “on-water matters” — refusing to say anything in order to defend national security. And so the public was kept in the dark.

What began with a muzzle regarding “on-water matters” soon extended to asylum seeker detention centres on Manus Island in Papua New Guinea and on Nauru. The governments of those countries wouldn’t comment on what took place in taxpayer- funded centres and new laws were implemented to punish any workers or aid agencies or their contracted organisations from talking openly about what they saw there. Journalists were refused access to the centres and their detained inmates.

Some refugees have managed to bypass the bans. MEAA is proud to have worked with Behrouz Boochani, a Kurdish journalist and refugee from Iran, who has determinedly produced outstanding and award-winning from Manus. MEAA remains concerned that Behrouz’s courageous reporting, including his recent prize-winning book, places him in danger which is why we are campaigning to #FreeBehrouz so that he can resettle in safety in Australia. MEAA does so with the aim to bring more attention to all who are subject to Australia’s immigration detention regime and ensuring the public’s right to know.

Australia’s national security assault on press freedom has also worked to criminalise legitimate journalism in the public interest. The various tranches of national security legislation unleashed by the government in recent years, when applied to journalists and their FOREWORD journalism, clearly have little to do with protecting the nation and more with BY PAUL MURPHY, CHIEF EXECUTIVE, MEAA making sure the public is kept in the dark. Prison terms for reporting on the he public’s right to know is a key security” but are really designed activities of government agencies and tenet of a healthy, functioning to intimidate the media, hunt for handling certain information are democracy — and it is one of down whistleblowers, and lock-up now enshrined in law. the responsibilities of open and information. We saw it when attempts transparent government. It’s to control asylum seeker boats sailing And journalists’ sources continue to Talso a cornerstone principle of journalism. to Australia, a customs and immigration be targeted. While new laws seek to issue, became militarised as Operation provide some whistleblowers with Increasingly, however, governments Sovereign Borders. protection, and only when placed are denying that essential democratic under certain conditions and in defined ingredient. More and more, they are Suddenly the Navy was conscripted into circumstances, government is also looking to operate in secret, shroud “protecting” our borders from leaking willing to hound whistleblowers in their activities and suppress all the sailing vessels and handfuls of pitiful court. The court actions mounted information about them, discourage refugees fleeing persecution, terror against Witness K and lawyer Bernard freedom of information searches, pursue and war. Immigration officers became Collaery for revealing events that and punish whistleblowers and place black-uniformed troopers in the newly took place 14 years earlier, the threat barriers in the way of journalists seeking named “Border Force”. And even though of 161 years in prison being faced by to tell the truth of what governments the high-ranking Defence Force officer Richard Boyle and the charges against are doing in our name. held regular press conferences, little former Defence Force lawyer David was ever said because the militarisation McBride all demonstrate that even when In Australia, waves of new laws are of immigration activities meant the whistleblowers have told their stories to passed in the name of “national military could simply cloak everything journalists and the public finally learns

2019 PRESS FREEDOM REPORT | 3 THE PUBLIC’S RIGHT TO KNOW

the truth, the truth tellers will still be The past year has also seen the failure of successive governments pursued and punished. of journalist Jamal Khashoggi in the and police to fully investigate these Saudi Arabian embassy in Istanbul. The and to bring those responsible Meanwhile, the government continues brutality of the killing and the failure of to justice is damning. to equip itself with new weapons in the governments to react (claiming that their attack on whistleblowers. Having used trade deals with the Riyadh regime are There has been some good news on the metadata laws to capture everyone’s worth more than a journalist’s life) prove several long-standing press freedom telecommunications data, Journalist that governments continue to provide issues. Information Warrants allow at least 21 impunity for the killing of journalists. government agencies to secretly access In our courts, the principle of open journalists’ and media organisations’ The relentless harassment of Filipino justice is trampled on as jurisdictions data for the stated purpose of editor Maria Ressa, a Time magazine across the country issue a barrage identifying a journalist’s confidential person of the year; Myanmar’s of suppression orders. However, the source — thus placing the journalist imprisonment of two trials highlighted the in breach of their ethical obligation to correspondents for investigating a suppression order issue — both for protect the source’s identity. massacre of Rohingya men; the jailing why orders are sometimes needed and of 68 journalists in Turkey and 47 in also why many judges are misusing The government has now embarked China — all these are indicators that the system either to punish the media on new laws to decrypt encrypted show that governments will do almost or to placate the powerful — many communications. Again, the claim is anything to muzzle the media. orders are simply nonsensical and made that this is in the name of national poorly defined. MEAA has long called security but the government’s powers Closer to home, the trolling, abuse for suppression orders to be reformed could put journalists at risk should and harassment of journalists online and the Vincent Review of ’s sensitive, and potentially damaging, continues to be a concern. Journalists problems and recommendations for information land in their hands. are increasingly required to maintain solutions points the way. The backdoor mechanism to break an online social media presence to, in encrypted communications weakens part, promote their own work and that MEAA has long campaigned for reform the overarching system of encryption, of their colleagues and employers. Too of the uniform defamation law regime. creating a loophole that could easily be often, the response from others is hate It is finally being reviewed after more targeted by hackers and online criminals, speech and threats of violence. More than 13 years of bloated damages. and risk the safety of journalists. needs to be done to ensure the laws Powerful people launch defamation that should protect people from being actions and win enormous payouts The hasty response to the Christchurch menaced or harassed by someone without having to demonstrate shooting also demonstrates the using the internet or telephone are they actually have a reputation, let government’s ill-thought-through fully enforced. alone one that has been damaged. use of badly drafted legislation. The The review has raised the question Criminal Code Amendment (Sharing of This issue, together with the case of whether corporations should be Abhorrent Violent Material) Bill 2019 of a former Age journalist being allowed to sue — MEAA argues that has led to concerns about the lack of awarded $180,000 in damages for handing over this kind of power to defences for individuals who may be post-traumatic stress, anxiety and wealthy businesses will only further whistleblowers or media companies who depression, also signal that media erode the public’s right to know. are publishing atrocities that they are employers must do much more to look trying to draw to the world’s attention. after the welfare, health and safety of There are welcome discussions taking The law means whistleblowers may no their journalist employees. place about improving diversity in our longer be able to deploy social media newsrooms, in the journalism they to shine a light on atrocities or raise This year marks a decade since the 2009 produce and the opinions they publish awareness of human rights abuses. Ampatuan Massacre in the Philippines and broadcast. Diversity must reflect — the single greatest atrocity against the audience the media serves. Gender Journalism is being criminalised and journalists — where 58 people were diversity as well as cultural and religious whistleblowers who seek to expose killed, among them 32 media workers. diversity can only make Australian wrongdoing are being punished — all The massacre happened because journalism better. for having the temerity to aid in the the Philippines was already mired in public’s right to know. impunity over journalists killings — Locking up information, punishing those when one murder goes unpunished, the who tell the truth and placing as many Overseas issues continue to challenge killers must have thought, would anyone barriers in the way of information getting press freedom everywhere. It is not really the murder of 32? They are out — all these are increasingly tainting such a great leap for powerful people almost right, because a decade on we are Australian democracy. It’s time to push to dismiss news stories they don’t still waiting for justice, and dozens of the back this tide of secrecy, intimidation like as being “” to declaring suspects including senior police and the and harassment — not least because it is journalists and media outlets “enemies military are still on the run. getting dangerously out of control. of the people”. From there it is a simple step for governments to arrest Australia’s own sorry toll of nine The public’s right to know must be journalists, shut down media outlets or journalists killed with impunity upheld and championed by all those silence journalists forever. continues to scar our history. The that value it. IT'S TIME TO PUSH BACK THIS TIDE OF SECRECY, INTIMIDATION AND HARASSMENT

4 | 2019 PRESS FREEDOM REPORT Jamal Khashoggi enters the Saudi embassy in Istanbul

IN THEIR OWN WORDS

and had a camera. I am injured in my “THERE CAN BE NO PRESS FREEDOM leg, I was confused, then I saw that I’m in hospital. I told them to let me go IF JOURNALISTS EXIST IN CONDITIONS because I want to cover the attack on OF CORRUPTION, POVERTY OR FEAR.” my colleagues.”8 INTERNATIONAL FEDERATION OF JOURNALISTS Agence France-Presse photographer Shah Marai’s message to a colleague confirming he was UNESCO observatory of killed thousands of jobs… What are you going working at the site of the first bomb, journalists — “1319 journalists killed to do, are you going to take that and just before the second killed him — since 1993.”1 throw all of that away?”5 “No worry man, I am here.”9

The last words of Saudi journalist Fahrettin Altun, communications Milo Yiannopoulos, two days before Jamal Khashoggi — “I can’t breathe… I director for Turkey’s President Recep the Capital Gazette group shooting, can’t breathe! I can’t breathe!”2 Tayyip Erdogan, on Khashoggi’s in what he says is his “standard murder — “The world is watching.”6 response” to a request for comment General Maher Mutreb, of Saudi — “I can’t wait for the vigilante squads Crown Prince Mohammed bin Committee to Protect Journalists to start gunning journalists down on Salman’s security team, to Saudi — “Even as Turkish President Recep sight.”10 officials — “Tell yours: the thing is Tayyip Erdoğan has been the fiercest done, it’s done”.3 critic of Saudi Arabia for the murder of Capital Gazette group reporter Phil Khashoggi, his government continued Davis after five of his colleagues US President — “It to jail more journalists than any other were killed by a gunman — “There is could very well be that the crown prince on the planet.”7 nothing more terrifying than hearing had knowledge of this tragic event – multiple people get shot while you’re maybe he did and maybe he didn’t.”4 journalist Saifulrahman Ayar under your desk and then hear the after nine colleagues were killed at gunman reload… He didn’t have enough Eric Trump — “I think it’s tough: the site of a suicide bomb blast — “I bullets for us. It was terrifying to know you can’t have journalists getting was near the blast site when the office he didn’t have enough bullets to kill murdered… [But] Saudi Arabia has called me and [asked me] to cover everyone in that office, and had to get been actually been friends of the US in the incident. It was minutes after the more.”11 many ways. They are ordering from us. first explosion. I was metres away Massive, massive orders… hundreds of when the second explosion occurred Capital Gazette reporter Rachel billions of dollars’ worth of arms and among the journalists. The second Paecella — “As one of six survivors things which will create tens and tens of attacker was acting like a journalist of our nation’s only newsroom mass

2019 PRESS FREEDOM REPORT | 5 THE PUBLIC’S RIGHT TO KNOW

President Donald Trump and reporters Official White House photo by Joyce N. Boghosian shooting, seeing generalised media- hand. Less than an hour later, [White Phone messages left for a journalist bashing tweets from the president House press secretary Sarah Sanders] by a right-wing extremist — “I’m makes me fear for my life. His words tweeted out the doctored video, writing, going to torture you to an absolute have power, and give bad actors ‘we will not tolerate the inappropriate delight little Lukey Luke. Absolute justification to act.”12 behaviour clearly documented in this delight. And I have people looking video’.”18 at you right now, staring at you from Trump a week after the Capital across the fucking street from where Gazette shooting — “Fake news. Trump supporter attacks a BBC you live. Enjoy this motherfucker. You’re Bad people… I see the way they write. camera operator at a Trump rally — dead, and baby, I’m catching up with They’re so damn dishonest. And I don’t “Fuck the media! Fuck the media! Fuck you.” mean all of them, because some of the the media!”19 “Pity you weren’t home, but at least we finest people I know are journalists know where you live so we’ll be saying really. Hard to believe when I say that. I Report — “ added to list of ‘G’day’.” hate to say it, but I have to say it. But 75 most dangerous countries for journalists “… stamp your fucking teeth into the percent of those people are downright for first time.”20 sidewalk.”26 dishonest. Downright dishonest. They’re fake. They’re fake. They make the PEN America’s law suit against Facebook comments sent to a sources up. They don’t exist in many Trump — “[President Trump] has journalist — “Go kill yourself before I cases. These are really bad people.”13 directed retaliatory actions and threats do.” at specific news outlets and journalists “When she leaves her house, there’s no Trump to CNN journalist — “You are whose content and viewpoints he views guarantee she’ll come back home. I’m the enemy of the people.”14 as hostile to him or his Administration, glad to see she lives in my city. I guess directly harming those organisations I have to be patient till I get to jump on Trump — “ and their employees, including her head and beat the fuck out of her. reporting is false. They are a true Plaintiff’s members.”21 Patience will avail. I’ll get my chance.”27 ENEMY OF THE PEOPLE!”15 Email sent to a laid-off BuzzFeed Voicemail left for the same journalist Trump — “The New York Times had US journalist — “The edited image — “Back off you fucking scumbag dog no legitimate sources, which would be shows two bodies hanging from a tree c… or you’ll be the one copping the totally illegal, concerning the Mueller next to the words ‘Day of the Rope’, a fucking brick to the head.”28 Report. In fact, they probably had no far-right meme about their desire to sources at all! They are a Fake News execute journalists. Underneath…, A Coalition staffer’s texts to a paper who have already been forced to where the scrolling cable news ticker Press Gallery journalist — apologize for their incorrect and very would usually appear, it reads “JUST “You are an unethical journalist…” bad reporting on me!”16 KILL THEM. MAKE AMERICA GREAT “… hope her family dies of vicious AGAIN.”22 cancel [sic]… I mean that… painful More than 400 US news outlets cancer for a vicious feminist C…” join ’s campaign Amnesty International — “[In the US “A c… Let her come to my home…. Slap for a free press — “Today in the and UK] one abusive tweet is sent to a her on her bitch face.”29 United States we have a president who female politician or journalist every 30 has created a mantra that members seconds.”23 Far-right activist Avi Yemeni doxxes of the media who do not blatantly a journalist’s phone number on support the policies of the current U.S. Neo-Nazi Blair Cottrell — “I might Facebook — “See this taxpayer-funded administration are the ‘enemy of the as well have raped [female journalist] ABC employee? He smears the country people’.”17 on the air, not only would she have that gave his peasant family refuge. Feel been happier with that but the reaction free to let [him] know what you think.”30 Report — “Infowars editor Paul Joseph would’ve been the same.”24 Watson tweeted out a video of the Messages sent to the journalist incident that was doctored to make Then Senator David Leyonhjelm following the doxxing — “You are the it look like [CNN reporter Jim] Acosta about a journalist — “What a bigoted lowest of low scum. Eyes open fucker, you chopped the woman’s arm with his bitch.”25 never know what is around the corner.”

6 | 2019 PRESS FREEDOM REPORT IN THEIR WORDS

“Muslim scum. I will spit on your face if or cause offence using the internet or — “You need a big hiding for ever I see you in the street, dog.” telephone. Those who feel they are a mentioning anything of that nature.”36 “So you hate white people. Why don’t victim of technology facilitated abuse, you try and do something to me. My which include the offences of stalking Steve Stanton to a skin is milky white. Does that upset or intimidation, should report this to journalist reporting on a NSW ICAC- you? What are you going to do about it? police.”33 related court case — “I see you are still I’m a trained killer with an IQ north of as ugly as ever.”37 140. That’s just a fact. So naturally I’m MEAA’s Digital Committee — “The not afraid to be confrontational with a Committee stands in solidarity with Communications Minister Mitch piece of shit degenerate like you.” Osman Faruqi and Rashna Farrukh who Fifield — “From time to time, I have “Go fuck yourself you disgusting piece have stood up for a diverse media this raised factual errors in ABC reporting, of excrement and I hope that when you week at great personal cost. In light but have always respected the legislated die they bury you face down so that you of the events in Christchurch, it has operational and editorial independence can’t scratch your way out again.”31 become even more apparent the role of the ABC. I have never involved myself the media has in magnifying extremism in staffing matters, nor am I aware of Yemeni tells the journalist why he and hate speech. Cultural diversity in any member of the Government who has doxxed him — “The purpose of me our newsrooms is vital to ensuring we sought to do so. The operations of the putting your [mobile] number online do better in reporting issues of race ABC are entirely matters for the board was so people can reach you directly. If I and religion, and makes for a stronger and management of the ABC which, by just tagged your pages, your and media.”34 law, the Minister does not have a role your Facebook or whatever, who cares, in. Questions about the ABC’s board and you just ignore those. If you get a bunch Unmoderated comments published management are matters for the ABC.”38 of people telling you what you think, mistakenly by The Australian — “So, SMS your phone, you weren’t going to their ABC headquarters building is a fire Report — “Almost all the directors of be able to ignore that.”32 risk. That’s good to know.” the ABC’s eight-member board were “WHAT!!! Are we saying that ABC appointed directly by the minister for NSW Police — “Publishing the Ultimo could become a towering communications and some personal information of an individual inferno? Hurry up with the matches.” were appointed after being rejected by is a breach of the Privacy and Personal “Quick……..anyone got a match?” the merit-based nominations panel… Information Protection Act 1998. Under “Matches… where did I put them?”35 Documents… show that of the five most the Commonwealth Criminal Code Act recent appointments, all were direct 1995, it is a crime to menace, harass Bob Katter to a Sky News journalist recommendations by Fifield.”39

Report — “Nothing against [Ita] Buttrose, but the serial flouting of the Australian Broadcasting Corporation Act by Communications Minister Mitch Fifield, who seems determined to ignore all recommendations of an independent nominations panel established by law to ensure appointments are at arm’s- length, should surely be a cause for public concern.”40

Report — “Communications Minister Mitch Fifield has made another complaint to the ABC – the sixth in five months…”41

Report — “Funding for the ABC has been cut by $84m… Savings from the ABC cuts will be redirected to other spending measures within the Communications and Arts portfolio… including $48.7 million for the commemoration of the 250th anniversary of James Cook’s landing in Botany Bay.”42

Report — “The government plans to introduce legislation to add a requirement to be ‘fair and balanced’ to the ABC Act… The move is part of a deal Senator Fifield reached with One Nation which guaranteed support for sweeping media reforms passed by the Senate last week.”43

Report — “The ABC has been ordered by Top: MP Bob Katter Andrew Meares Fairfax Photos, Bottom: The Boston Globe’s press Federal Communications Minister Mitch freedom campaign The Boston Globe; Fifield to reveal what it is paying its top

2019 PRESS FREEDOM REPORT | 7 THE PUBLIC’S RIGHT TO KNOW

Health Minister Justin McManus Fairfax Photos on-air personalities, in what amounts to make it clear the Government would You’re a journalist, I’m a parliamentary to a win for One Nation. The national not ‘alter the ownership arrangements representative. You ask questions that broadcaster has been directed to of the public broadcasters’ but, perhaps you want to present as a game but this ‘voluntarily’ cough up the salaries of all reading the room, he did not offer any is a real discussion about freedom of staff being paid $200,000 or more by the sort of defence of the ABC or why it speech and this was your chance and I end of next month. If it does not do so, should exist.”48 hope you run this in full… You haven’t Senator Fifield will push for a change to answered any of my questions.”52 the Australian Broadcasting Corporation Report — “The call to sell the public Act to force the disclosure.”44 broadcaster, put by the Young Liberals The Chinese Embassy’s head of and carried by adults who should know media affairs Saxian Cao to a “60 Report — “Communications Minister better, was pure self-indulgence. The Minutes” producer — “Take this Mitch Fifield established a review into sale will not happen. The motion was down and take it to your leaders! You whether the ABC and SBS enjoy unfair cheap theatre. Even so, it says a lot will listen. There must be no more advantages in the marketplace due to about the state of Australian politics misconduct in the future. You will not their public funding. The ‘competitive today.”49 use that footage.”53 neutrality’ review had been agreed to many months before, in a deal with One Report – “Communications Minister Business Council of Australia president Nation to pass the government’s media Mitch Fifield... has close links with and Grant King seeks to stop reporting of a ownership reforms.”45 remains a member of the [Institute of protest in a Senate hearing — Public Affairs].”50 Chair (Senator Ketter): I note that a Report — “Senator Fifield justified protest just occurred… another efficiency review into the Report – “Institute of Public Affairs King: I’m seeking assurance that this national broadcaster as four years — Parliamentary Research Brief – 20 does not play in the media. It has nothing the time since the last one — was ‘an Policies to Fix Australia… The ABC must to do with the inquiry… eternity’ in the media industry.”46 be privatised.”51 Chair: This is a free country, Mr King. I can’t stop individuals from doing what Young Liberal Mitchell Collier on Health Minister Greg Hunt — “As they’ve done… privatising the ABC — “There are a journalist, I would hope that you Senator Keneally: Mr King, can I clarify? several ways we could privatise the believe in freedom of speech. What Are you asking this committee to ask the ABC — we could sell it to a media does freedom of speech mean to media not to run footage of that protest? mogul, a media organisation, the you?… I’ve answered your question, King: I don’t believe that that protest has government could sell it on the stock now you answer my question. Will anything to do with the inquiry. market. Privatising it would… enhance, you just once answer a question from Jennifer Westacott, BCA chief not diminish, the Australian media me? Here’s your chance. What does executive: As one of the people whose landscape.”47 freedom of speech mean to you as a personal security and personal names journalist? Your audience is listening, are at risk here, I think that’s extremely Report — “It was left to here’s your chance. Or are you afraid frustrating… Communications Minister Mitch Fifield to stand up for freedom of speech?… Senator Keneally: You understand we

8 | 2019 PRESS FREEDOM REPORT IN THEIR WORDS

for journalists in the Philippines is alarming. The Duterte government files case after case against Rappler while the president himself lobs sustained, often personal attacks against individual journalists. Online harassment of journalists is highly organized and vicious.”62

Committee to Protect Journalists — “In its annual global survey, the Committee to Protect Journalists found at least 251 journalists in jail in relation to their work… The past three years have recorded the highest number of jailed journalists since CPJ began keeping track, with consecutive records set in 2016 and 2017. Turkey, China and were responsible for more than half of those jailed around the world for the third year in a row. The majority of those imprisoned globally — 70 percent Clockwise from top left: UNESCO world press freedom day logo; Pulitzer Prize — are facing anti-state charges such as winners - Reuters reporters Wa Lone and Kyaw Soe Oo Reuters; Arrest of Maria Ressa, belonging to or aiding groups deemed executive editor of Rappler Rappler; by authorities as terrorist organisations. The number imprisoned on charges of false news rose to 28 globally, compared live in a free country. People are allowed Ressa after her release on bail on with nine just two years ago.”63 to protest. And we have a free press.54 another charge on February 14 2019 — “We will not duck, we will not hide, International Federation of Myanmar’s First State Counsellor we will hold the line.”58 Journalists (IFJ) — “2018 saw 95 Aung San Suu Kyi on the jailing of journalists and media professionals lose journalists investigating the killing Ressa facing another arrest warrant their lives in targeted killings, bomb of Rohingya Muslims — “They were on March 28 2019 — “Landing [from attacks or crossfire incidents. Yemen, not jailed because they were journalists, the US] in a short while to face my latest , Mexico, Afghanistan and Syria they were jailed because… the court arrest warrant and the 7th time I will witnessed the most devastating toll. has decided that they have broken the post bail. #HoldTheLine We pledge to And whilst South Asia is now the world’s Official Secrets Act.”55 not just hold power to account but I will most dangerous region for journalists, mark every violation of my rights under no part of the globe was left unscathed Report – “The Pulitzer Prize for the Constitution (like harassment cases by those who seek to silence the message International Reporting was handed to to try to intimidate rappler.com)”.59 by killing the messenger. The rise in Reuters, with a special mention for Wa killings takes place in the context of an Lone and Kyaw Soe Oo who are serving MEAA National Media Section increasing polarisation of views across seven years in Yangon’s Insein Prison committee letter to Philippines the world with the rise of dangerous for ‘exposing state secrets.’ The men led Ambassador — “The arrest of Maria nationalist and populist forces in many an explosive Reuters investigation into Ressa on the charge of cyber libel is countries and the stigmatisation of the killing of 10 Rohingya men... Now, as a shameless act of persecution by journalists and media by politicians and Myanmar’s Supreme Court hears their the Filipino government. Ressa is the enemies of media freedom.”64 final appeal against conviction... the pair recognised internationally as a great had been inducted into the elite group human rights defender and a strong UNESCO — “Every year, May 3 is a of winners... ‘for expertly exposing the press freedom advocate. Journalists date which celebrates the fundamental military units and Buddhist villagers around the world stand as one in principles of press freedom, to evaluate responsible for the systematic expulsion condemning the arrest of Maria. This press freedom around the world, to and murder of Rohingya Muslims from arrest is a very serious threat to media defend the media from attacks on their Myanmar, courageous coverage that freedom and journalists’ safety.”60 independence and to pay tribute to landed its reporters in prison’.”56 journalists who have lost their lives International Press Institute director in the exercise of their profession. It Rappler editor Maria Ressa after an Ravi R. Prasad — “The arrest of Maria serves as an occasion to inform citizens arrest warrant on December 2 2018 Ressa is an outrageous attempt by the of violations of press freedom… May 3 — “The arrest warrant [was] shocking Philippines government to silence acts as a reminder to governments of but not surprising. It’s a natural a news organisation that has been the need to respect their commitment consequence of this strategy of the courageously investigating corruption to press freedom… Just as importantly, government to try to intimidate and and human rights violations in the World Press Freedom Day is a day of harass. The fact that they would go so country.”61 support for media which are targets far on such flimsy charges just shows for the restraint, or abolition, of press me that the rule of law is a concept but Committee to Protect Journalists freedom. It is also a day of remembrance not one that is upheld. It has been bent mission to the Philippines – “The for those journalists who lost their lives to the point that it is broken.”57 oppressive working environment in the pursuit of a story.”65

2019 PRESS FREEDOM REPORT | 9 THE PUBLIC’S RIGHT TO KNOW ATTITUDES ABOUT PRESS FREEDOM BY MARK PHILLIPS

he widespread use of HAS PRESS FREEDOM GOT defamation, excessive court BETTER OR WORSE OVER TOP 10 PRESS issued non-publication FREEDOM ISSUES orders, and national security THE PAST DECADE?

and metadata retention laws 100 91.9 1. Diversity of media ownership Tare combining to make it more difficult 84.9 2. National security laws that for Australian journalists to do their criminalise journalism jobs, MEAA’s annual press freedom 80 3. Whistleblower protection survey has found. 4. Government secrecy and lack The second annual survey of 1532 60 of transparency people was conducted online by MEAA 5. Funding of public from February to early April. 40 broadcasting 6. Political attacks on The survey was open to all members of journalism the public, with 386, or a quarter of the 20 12.3 7.  Defamation respondents (25.1 per cent), identifying 7.1 as a journalist or other form of media 2.8 1.0 8. Freedom of Information professional. Of these 212 were currently 9. Journalist shield laws employed, with the remainder either JOURNALISTS NON-JOURNALISTS 10. Court suppression orders retired or unemployed journalists, or BETTER (%) WORSE (%) THE SAME (%) studying for a career in journalism.

It found that that 63 per cent of Government secrecy and lack of Court suppression/non-publication journalists believe the overall health transparency came next with a 71 orders are a growing issue for of press freedom in Australia is “poor” per cent rating of poor or very poor. journalists. Slightly under a quarter or “very poor” while 65 per cent say This was followed by the impact of of all journalists said their work had press freedom has got worse over the national security laws that criminalise been hindered by an order in the past decade. journalism scoring 70 per cent, past 12 months. Of these, 56 per cent whistleblower protection scored 69 of respondents said they believed Asked to assess the health of current per cent, metadata retention scored the court’s decision was excessive. press freedom issues, working 67 per cent, with political attacks on Overall, 54 per cent of journalists journalists became more pessimistic. journalism on 66 per cent. believed that judges are actively They identified the diversity of media discouraging reporting of open courts ownership as an issue of concern, with Journalist shield laws were next on and are taking a more aggressive view 73 per cent giving a score of poor or 65 per cent and defamation was of media reporting. very poor. ranked at 64 per cent. Funding of public broadcasting came next on These numbers were higher in 62 per cent, with court suppression Victoria, where the suppression THE HEALTH OF PRESS orders and freedom of information order issue is said to be particularly FREEDOM IN AUSTRALIA tied on 58 per cent. acute. This has been highlighted by the controversy over the George Pell  56.2 But it was when journalists were asked case, in which dozens of editors and 52.8 specific questions about their own journalists have been charged with  personal experiences that the clearest contempt of court for publication of picture emerged of the impact of current details of the case allegedly in breach  press freedom constraints on their work. of a blanket suppression order. 33.5  27.3 Eighty per cent of journalists said Among the Victorian working Australia’s defamation laws made journalists 28 per cent said their work

 15.3 reporting more difficult (72 per cent in had been hindered by a court issuing 10.4 2018) and 10 per cent (up from 6.3 per an order. Of these 82 per cent said  cent in 2018) had received a defamation they believed the court’s decision 3.3 1.2 writ in the past two years. Twenty-eight was excessive. More generally, 62 per per cent of journalists (up from 2018’s cent of Victorian journalists believe JOURNALISTS NON-JOURNALISTS 24.4 per cent) said they had had a news judges are actively discouraging story spiked within the past 12 months reporting of open courts and are POOR (%) VERY POOR (%) because of fears of defamation action by taking a more aggressive view of GOOD (%) VERY GOOD (%) a person mentioned in the story. media reporting.

10 | 2019 PRESS FREEDOM REPORT JOURNALISTS’ VIEWS ON HUNTING FOR PRESS FREEDOM ISSUES WHISTLEBLOWERS BY SECRETLY ACCESSING

DO YOU BELIEVE AUSTRALIA’S HAVE YOU RECEIVED A JOURNALISTS’ METADATA DEFAMATION LAWS MAKE DEFAMATION WRIT IN THE HOW CONFIDENT ARE YOU THAT REPORTING MORE DIFFICULT? PAST TWO YEARS? YOUR SOURCES WOULD NOT BE SUSCEPTIBLE TO BEING IDENTIFIED [THROUGH YOUR METADATA]? YES NO 9.9% 19.8%

YES NO 80.2% 90.1%

IN THE PAST 12 MONTHS, IN THE PAST 12 MONTHS, DID VERY CONFIDENT 5.2% HAVE YOU HAD A NEWS STORY INFORMATION FROM A CONFIDENTIAL SPIKED BECAUSE OF FEARS OF A SOURCE LEAD YOU TO PUBLISH/ SOMEWHAT CONFIDENT 37.8% DEFAMATION ACTION? BROADCAST A NEWS STORY? NOT CONFIDENT 41.0% VERY UNCONFIDENT 16.0%

YES YES A third of journalists said information 27.8% 33% from a confidential source whose identity they had protected had led to NO NO the publication or broadcasting of a 72.2% 67% news story but only 8 per cent believed legislation was adequate to protect public sector and private sector whistleblowers.

Despite more than two years of laws DO YOU BELIEVE LEGISLATION DO YOU, OR YOUR EMPLOYER, TAKE which allow government agencies to IN THE PUBLIC AND PRIVATE STEPS TO ENSURE THAT YOU DO NOT access journalists’ computers, mobile SECTOR IS ADEQUATE TO PROTECT GENERATE METADATA THAT COULD phones and other metadata, less than WHISTLEBLOWERS? IDENTIFY A CONFIDENTIAL SOURCE? half of journalists said they or their employer took steps to ensure they did not generate metadata that could identify YES a confidential source. More than a half 8.1% (57 per cent) said they were not confident YES that their sources could be protected from NO 41.5% being identified from their metadata. NO 58.5% 91.9% Journalists say they get most of their information on press freedom issues from MEAA or from what they glean from media reports. Media companies are failing in keep their workers up to IS YOUR EMPLOYER KEEPING YOU IN THE PAST 12 MONTHS, HAVE ANY date about press freedom concerns with INFORMED OF CHANGES TO NATIONAL OF THESE [NATIONAL SECURITY] less than 1 per cent of responses saying SECURITY LAWS AND HOW THEY MAY LAWS AFFECTED YOUR ABILITY TO their main source of information came AFFECT YOUR JOURNALISM? PRODUCE YOUR JOURNALISM? from their employer. Only 27 per cent of journalists said their employer kept them informed of YES changes to national security laws and YES 18.9 how they may affect their journalism, 27.3% although only 19 per cent believed their reporting had been hindered by NO NO Australia’s national security laws. 72.7% 81.1 Mark Phillips is MEAA’s communications director.

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treats the considerations that “may” be taken into account as independent hurdles that must be overcome. The THE LAW defence has rarely succeeded at trial. The reality is that for journalists, the stringent demands of the defence make it available in theory only. It has left media lawyers reluctant to plead it as a THE YEAR IN defence altogether. The working group should not be hesitant on this issue — the qualified privilege defence requires reform to AUSTRALIAN allow journalists to publish matters that the public have an interest in receiving.

Multiple publication rule The Discussion Paper also wrestles MEDIA LAW with the debate surrounding the calls to reform the “multiple publication A REVIEW OF AUSTRALIA’S BROKEN rule” to a “single publication rule”. Currently, although section 5(1AAA) of DEFAMATION REGIME AND THE CULTURE OF the Limitations Act 1958 (Vic) provides that an action in defamation must be SUPPRESSION. LEGISLATURES MUST EMBARK brought within one year from the date of publication, where it is an online ON COMPREHENSIVE AND BOLD REFORM, publication, the multiple publication rule operates to allow this one year WRITE PETER BARTLETT AND TESS MCGUIRE period to restart each time it is downloaded.

This means the limitation period is ur society has adapted and defamatory imputations of which the effectively open-ended. The ability embraced the vast change plaintiff complains. In operation, this to bring an action years after the that social media and means that when a defendant seeks to original publication presents concerns technology have caused, but rely on "substantially true" imputations, that defendants will face evidentiary our media laws have not. The they must have not already been challenges where proof may have been Olimited ability of our defamation and pleaded by the plaintiff, and where lost or destroyed. suppression order regimes to respond they are absent, the plaintiff has the to the disruption has received much ability to amend their statement of To address this, reforms could follow attention over the past year. Action claim adopting those imputations. This the UK approach which has introduced is needed. Not mere tinkering at the renders the defence futile. the “single publication rule” to ensure edges, but reform that seeks to restore a consistency between print and online balance between protecting reputations Qualified privilege defence publication limitation periods. This and freedom of speech. When it comes to the qualified would mean plaintiffs are prevented privilege defence, the Discussion from bringing actions in relation to DEFAMATION LAW REVIEW: A Paper states it has been successfully a publication, years later. Under this STEP CLOSER TO REFORM established on “a number of occasions”. model, the court would still retain NSW is now responding to the calls for This is whilst acknowledging that the discretion to extend the time limit review and reform. majority of successful defendants were for actions for defamation where not media organisations. appropriate. The state government has established a national working group that includes There has been confusion surrounding Other reforms a representative from each state and the approach to this defence — whether This review presents an opportunity territory. In February 2019, the working it is the jury or trial judge who decides to deliver substantial changes to the group released a Discussion Paper that if a publication was “reasonable” in the defamation regime. Other necessary outlined areas of concern as well as circumstances (the third element of reforms include: questions for comment. the defence). Notably, in Gayle v Fairfax • Introducing a UK-style “serious harm” Media Publications Pty Ltd (No 2) [2018] threshold for a defamation claim to Contextual truth NSWSC 1838 Justice McCallum reversed filter out trivial and spurious matters. A key admission from this Paper is her previous view (held in Davis v It won’t help the mainstream media that the defence of contextual truth Nationwide News Pty Ltd [2018] NSWSC though. in section 26 of the Defamation Act 669) that the question of reasonableness • Implementing a provision that clearly 2005 contains a drafting error that has is to be determined by the jury. sets out the standard of particulars resulted in far more limited application that are required to be met to than was intended. This new approach allows for judges to substantiate a justification defence demand an exceptionally high standard in the Federal Court, which standard Section 26 states that a defendant can for the steps and considerations that would be less than that suggested in only plead the substantial truth of an a journalist should take in order to be the recent Chau Chak Wing v Fairfax imputation that is "in addition to" the deemed “reasonable”. The court often Media case.

12 | 2019 PRESS FREEDOM REPORT • Whether there is actually a cap on There appear to be an unprecedented to Gina McWilliams, senior legal damages. In the Rebel Wilson case number of actions against the media. counsel at News Corp, who keeps the the judge ruled that the cap can official tally. McWilliams reports that be exceeded if there is a finding of THE CULTURE OF SUPPRESSION by contrast, courts aggravated damages. As Judge Judith UNDER QUESTION issued 185, issued Gibson has noted, this interpretation When a jury found George Pell guilty 179, the Northern Territory only 69, was never envisioned by the drafters of five child sex offences on December issued 18, and , of the legislation. Hopefully Shadow 11, the media was suppressed from and the ACT all Attorney-General Mark Dreyfuss, reporting on what was described as issued only one. Clearly Victorian with his background in leading “the nation’s biggest story”. Media Judges have a different view of “open defamation cases (Lange, Hore-Lacey), outlets criticised the suppression order justice” than the judges in the rest of will see the benefit of introducing as . This drew national the country. Further action needs to Federal legislation. The 2005 Act was attention to the issues of granting be taken to ensure the so-called Open a compromise produced by all of the suppression orders in the modern Courts Act actually fulfils the intentions States and Territories. We need a clear world. of Parliament. message to the Judiciary, not another compromise bill. Although the Australian media was not In response to the attention this has able to inform the public of the verdict, drawn, the Andrews government Many of the defamation cases being it was widely discussed on social media has asked the Victorian Law Reform instituted are being issued in the — becoming the number one trending Commission to review contempt Federal Court. This is a move away topic on Twitter - and some overseas of court laws and enforcement of from juries and possibly trying to avoid media, such as and suppression orders. The Victorian the long delays in the delivery of some the Daily Beast, published the details of government has also introduced judgments, especially in the Supreme the outcome. amendments to the Open Courts Act to Court of NSW. implement seven of the Vincent Review This also drew attention to Victoria’s recommendations. These changes will For media defendants it was another status as the leading suppression mandate that courts provide reasons for year of depressing judgments and state – where the highest numbers making suppression orders, and clearly rulings from both the Federal and NSW of suppression and non-publication outline the basis, scope and duration, Supreme Court. orders are issued in Australia. This is with a view to reducing the amount despite the introduction of the Open granted. They do not go far enough. The Peter Gregg and Craig McLachlan Courts Act in 2013 which sought to make A clearer message needs to go to the actions were stayed after they were orders suppressing the dissemination judiciary in Victoria. charged. However, at that time of information on court proceedings, the media defendants had incurred issued only where truly necessary. Following the Pell trial, the Law substantial costs. Unfortunately, the Vincent Review Council of Australia has now called found that the Open Courts Act had for a national review to work towards Costs are a huge issue. The Australian not had the impact of significantly implementing uniform rules regarding newspaper successfully defended the decreasing the amount issued. This suppression orders and to modernise action brought by Atkinson Prakash trend has continued. the regime to account for the internet Charan. Charan appealed. While The and social media. Australian also succeeded on appeal, it As of December 8 2018, Victorian advised the Court of Appeal that it had courts had issued 443 suppression The NSW Law Reform Commission is already incurred $1 million in costs in or non-publication orders over the also looking at whether the current the first instance trial. course of the year. This is according laws affecting suppression orders

2019 PRESS FREEDOM REPORT | 13 THE PUBLIC’S RIGHT TO KNOW

and the reporting of issues affecting (The author Peter Bartlett is an advisor children strike the right balance. It is to the VLRC on the reference.) also looking at whether such laws are effective in the digital environment. THE STIFLING OF #METOO? For the past few years, the world has Certainly the issue of suppression watched on as waves of women have orders in the state of Victoria is totally come forward to level allegations against and utterly out of hand. high profile men to say that they, too, were sexually harassed or assaulted. It CONTEMPT has been a powerful movement that An interesting year. has shone a light on the prevalence of such abuses of power. It revealed the The Victorian Director of Public reluctance many women felt towards Prosecutions sent some 100 letters reporting their experiences to authorities to the media, asking why they should and engaging the justice system. not be prosecuted for contempt over the Cardinal Pell conviction. While Unfortunately however, in Australia, some international media and social it can mean that both those that dare media had reported Pell’s conviction, speak out and those that report it, can Australian media was restrained find themselves on the receiving end by a suppression order, pending of a defamation law suit. This has been Pell’s scheduled second trial. It is demonstrated through many recent interesting to note that Mr Justice high profile cases. Vincent (retired) has actually queried whether the Pell suppression order Last year then Leader of the NSW Labor was justified. He has, after 50 years Party Luke Foley threatened to sue of experience, far more faith in juries the ABC for publishing ABC journalist than the trial judge. He referred to the Ashleigh Raper’s account detailing Walsh Street murder trial where the an incident of sexual harassment. Ms accused were found not guilty despite Raper had not wanted to speak out wide . about the event but an MP revealed the details under parliamentary Australian media reported that a high privilege. Although Foley abandoned profile person had been convicted the defamation claim, it sent a message but could not name that person. In that those that publish accusations are response to the DPP letter, some at a high risk of legal action. media responded in a conciliatory manner and have been advised that Similarly, Geoffrey Rush initiated no contempt proceedings would be the proceedings against the Daily taken. The DPP has taken contempt Telegraph after the paper published proceedings against 36 media allegations of inappropriate behaviour companies and individuals. This towards a young actress. The trial is unprecedented in the history of descended into a brutal he said-she contempt actions in Australia. said, with Rush’s barrister accusing the actress of telling “disgusting lies”. Craig Dunlop of the NT News escaped a Rush has also argued he is entitled to conviction for contempt after footage special damages between $4,834,749 of a one-punch attack was posted to and $20,300,783 based on lost future the NT News website, despite a court income. The court’s decision is highly direction not to post it online. The anticipated. Chief Justice was not convinced that SHARING Dunlop was involved in the uploading. The present concern is that the trend of Blogger Shane Dowling was not so those accused threatening defamation, ABHORRENT lucky. He was convicted of contempt combined with the difficulty the and sentenced to jail. Little is known defendant faces in proving a truth about the conviction as the judgment defence for incidents that are usually VIOLENT is suppressed. without witnesses, and the lack of support those making accusations The Australian newspaper was fined receive from the court, may silence our MATERIAL $155,000 after it pleaded guilty to media from publishing the accounts sub judice contempt following the of women. This is not in the public he media industry is being publication of an article on John Setka. interest. Both the media, and victims, caught up in the Coalition’s should be able to speak out without fear haste to respond to digital The Victorian Law Reform Commission of facing an unwinnable defamation platforms airing a live video is looking at contempt laws generally. lawsuit when it comes to matters of stream by the Christchurch In an era of social media, the sexual harassment or assault. Tshooter. It has claimed that in choosing reference is timely. It follows many to punish and penalise social media’s previous reports by State Law Reform Peter Bartlett is a partner and Tess digital platforms for airing any future Commissions. The VLRC is due to McGuire is a graduate with the law abhorrent videos, the hastily drafted report by December 31 2019. firm MinterEllison legislation called the Criminal Code

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A Muslim woman brings flowers to a makeshift memorial near Christchurch’s Masjid Al Noor mosque. | Jason South Fairfax Photos

Amendment (Sharing of Abhorrent Violent company could face a fine of up to 10 per off, so you don’t have anything to Material) Bill 201966 has also swept up cent of annual global turnover for the livestream. That’s the first issue. That legitimate news reporting. crime. A jury would determine whether a hasn’t been thought through in this platform’s response time is reasonable.”67 legislation. Secondly, and importantly, The operators of web sites that host we are very concerned about this “abhorrent violent material” online Law Council of Australia president impacting on media freedom. Our media face steep fines and even possible Arthur Moses told ABC Radio: “The are the guardians when it comes to prison sentences. The legislation was government has tripped over itself to try public interest,” Moses said. introduced to the Senate on its final to legislate quickly before the election… day of sitting on April 3 2019 and was If you are going to use this type of “The difficulty with this legislation is passed in the lower house on April legislation to deal with the consequences that it doesn’t provide defences for 4 with bipartisan support. The aim of hate speech, which is really what individuals who may be whistleblowers was to have the law in place before this is where you have acts of violence or media companies who are publishing the Parliament rose prior to a federal being perpetrated on members of the atrocities that they are trying to draw to election being called. community, there are two things that the world’s attention,” Moses said. you need to be careful about. The Morning Herald reported: Greens Senator Jordon Steele-John “An individual could face jail if their “Number one: you need to ensure warned that the legislation could curtail social media service or online platform that in relation to hate speech, you the sharing of content on social media recklessly provides access to or hosts need to give some mechanism under that shows human rights abuses. He offending material and they do not the legislation to direct social media told the ABC: “If we don’t have public ‘expeditiously’ put a stop to it. A companies to take the hate speech interest safeguards, there is a definite

2019 PRESS FREEDOM REPORT | 15 THE PUBLIC’S RIGHT TO KNOW

possibility it could be used to take down the world is overdue. However, this law providers. Similarly, this may influence videos of refugees being mistreated on goes beyond this. While we have worked the social media platforms and methods Manus Island.”68 with the Government to try to minimise that media organisations are able to the impact, this law risks criminalising use to communicate important public Moses had earlier said69 that any news reporting and provides significant interest pieces. If people on social media measure to combat weaponising of powers to the eSafety Commissioner to seek to shine a light on an atrocity or social media should be sensible and not take down news content.”71 criminality, this is where the bill bites, make unreasonable demands of social as there is no defence for social media media companies. “A machine cannot Labor has said it will refer the legislation providers who choose not to remove easily pick up the difference between to a parliamentary committee if Labor violent content because the provider a computer game and online live wins government at the federal election. believes the material is in the public streaming. The algorithms may need “Shadow Attorney-General interest. So the bill could, in effect, lead time to be developed, assuming they can said the legislation could harm security to censorship of the media, which could be,” he said. “Parliament making social cooperation with the United States, undermine the very potential of the media companies and their executives encourage invasion of internet users’ fourth estate to hold governments to criminally liable for the live streaming privacy, undermine whistleblowing account,” Phelps said. of criminal content is a serious step activity, and does not actually include which needs to be thought through the promised power to jail social media “… We need to consider how to provide carefully, including what defences will executives.”72 a public interest defence for those be available. who may be captured by the proposed Attorney-General ’s offences but honestly believe, on “Bad and ineffective legislation is office said the law had been designed reasonable grounds, that they are acting enacted when it is a knee-jerk emotional carefully so as not to affect the ability of in the public interest in not removing reaction to a tragic event. The job of to report on events which particular material from social media our parliamentarians is to approach are in the public interest within their in order to expose criminal content their task in a mature and considered existing licensing standards. “What that should be brought to the public manner so effective and valid laws are Facebook did was so appalling that I attention. Consideration could be had enacted,” Moses said. “Parliamentarians don’t think Australians want to wait to modelling such a public interest should not rush this through, but rather around for it to happen again while we defence of similar defences that use the time to consult so we get this commission an Australian Law Reform already exist in other legislation, such right. The Law Council will carefully [Commission] report over 18 months.”73 as Commonwealth whistleblowing consider the draft legislation when it is legislation or the Public Interest provided with a copy and will work with Independent MP Dr Kerryn Phelps told Disclosures Act 1994 New South Wales, the Parliament to ensure the proposed the House of Representatives during the which provides protection to public legislation is able to be complied with, debate on the Bill:74 “A key concern with officials who report public sector proportionate, fit for purpose, and the bill as drafted is that whistleblowers wrongdoing in particular circumstances. appropriately calibrated.” may no longer be able to deploy social media to shine a light on atrocities “Any government or, indeed, any major ABC Radio also spoke to Fergus Hanson, committed around the world, because party seeking to govern, should be the head of International Cyber Policy social media companies will be required mindful of passing rushed legislation Centre at the Australian Strategic Policy to remove that content for fear of being without consulting stakeholders, Institute, who said: “There are issues charged with a crime. Social media can including the affected industry, or around definitions so we don’t know, and has been used, including by media considering the broader implications. for example, how quickly companies organisations and whistleblowers, to It is much better to get this legislation have to remove the information. It’s draw attention to violent atrocities right than to pass flawed laws that will very hard to reach lots of companies occurring overseas or criminal conduct lead to unintended consequences,” outside Australia’s jurisdiction. It sets by a foreign government, such as Phelps said. up a new super censor in the eSafety injuring or killing its own citizens. Commissioner who has this right to Susan Benesch, founder of the issue notices to anyone.”70 “The legislation may have a chilling Dangerous Speech Project at Harvard’s effect on the potential for social media Berkman Klein Center for Internet and News Corporation told The Sydney users and media organisations who Society, told the New York Times, that Morning Herald that it was concerned use social media providers to perform the legislation “would likely encourage the legislation “criminalises” reporting this important public service function. increased censorship and takedowns by of news. “We support the intent of the Whistleblowers may unfortunately companies. The platforms would likely legislation. Making the digital platforms be prevented from being able to tell move their offices out of countries that liable for what they make available to these important stories through such pass such laws, to protect them from prosecution.”75

MEAA supports the principle that social media platforms are held accountable “BAD AND INEFFECTIVE for content but MEAA chief executive Paul Murphy said there were concerns LEGISLATION IS ENACTED WHEN that legislation is being rushed in such a complex area without proper consideration to ensure it doesn’t IT IS A KNEE-JERK EMOTIONAL impinge on media freedom.76 MEAA believes the legislation should be sent REACTION TO A TRAGIC EVENT.” to a Parliamentary Committee to allow ARTHUR MOSES, PRESIDENT, LAW COUNCIL OF AUSTRALIA proper consultation and consideration.

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George Pell Jason South Fairfax Photos

SUPPRESSION ORDERS

he widespread use and misuse 22 2018, the Victorian Director of Public In these situations it is my duty to either of suppression orders by the Prosecutions Kerri Judd QC writing an apply for or support the making of a courts has been a major press opinion piece in the said: suppression order. freedom issue for many years and has been mentioned in As Director of Public Prosecutions, it A suppression order will often prevent Tseveral MEAA annual press freedom is my responsibility to ensure that the the media reporting certain aspects reports.77 But the suppression order prosecution of serious criminal offences of a prosecution such as the name of surrounding the trials of George Pell has is fair. I must also ensure prosecutions a witness or the methodology used by sparked unprecedented discussion. proceed in a manner that will not put the police to detect crime. It will sometimes safety of any person at risk or cause undue delay the media reporting on a case so The Pell trials’ suppression order was distress or embarrassment to children, as to ensure a jury hearing a separate issued on Monday, June 25 2018 by the victims of sexual offences and victims of future trial does not receive information County Court Chief Judge family violence. that could unfairly impact upon their Peter Kidd in the matter of Director deliberations. However, in almost of Public Prosecutions v George Pell. Our justice system is open and all of these cases, any suppression “The prosecution had applied for the transparent. Anyone can walk into our order obtained will not put a blanket suppression order to prevent ‘a real courts and watch justice at work. The prohibition on the media reporting the and substantial risk of prejudice to media reports extensively on criminal proceeding... the proper administration of justice’ justice hearings and the courts are doing because Pell originally was to face a more to communicate the work they do. Orders are only made by judges when they second trial on separate charges.”78 are necessary and appropriate, and they Sometimes the unrestricted reporting of only remain in force for a specified period. It is important to note that no a case by the media will compromise the media organisations challenged the right to a fair trial, lead to national or Victoria has led the way in maintaining suppression order. international security concerns or lead to and distributing a database of the inappropriate identification or location suppression orders through our courts to Just three days earlier, on Friday June of vulnerable members of our society. all media outlets.

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I will continue to apply for suppression The following day the Washington curtailed reports in the Australian media, orders as they play an important role in Post discussed83 media organisations but did little to stop the news from the administration of criminal justice. that had breached and observed the emerging on social media. I will continue to balance requirements suppression order, saying that the order for open justice, a fair trial, protecting “has proved futile against the internet” A story in the Sydney Morning the community from danger, enabling before explaining its own actions: Herald published Wednesday, for the police to properly investigate and example, didn’t refer to the name, position detect crime and the protection of An Australian court’s gag order and the or even gender of the person involved. vulnerable victims and witnesses.79 forces of the Information Age collided on One… story began, “A very high-profile Thursday in a largely futile effort to keep figure was convicted on Tuesday of a On September 20 2018, a five-week trial news about the conviction of a high- serious crime, but we are unable to report was declared a mistrial after the jury ranking Vatican official from reaching their identity due to a suppression order. failed to reach a verdict. A retrial began readers. While some U.S. and British news The person, whose case has attracted on November 7 2018 and resulted in a organizations, including the New York significant media attention, was convicted guilty verdict on December 11 2018 – as Times, did not report on the conviction on the second attempt, after the jury in an with the trial, this verdict remained of Australian Cardinal George Pell on the earlier trial was unable to reach a verdict. subject to the suppression order and judge’s order, social media and other news They will be remanded when they return could not be reported. outlets defied it. to court in February for sentencing.”

BREACHING THE ORDER The Times’ deputy general counsel, David Courts in the Australian state of Victoria However, the verdict result McCraw, said the newspaper is abiding — where Pell’s trial took place — issued subsequently leaked. by the court’s order in Australia ‘because nearly 1600 suppression orders between said: “Some international media outlets of the presence of our bureau there. It is 2014 and 2016 after Victoria enacted a – who were unlikely to have been in deeply disappointing that we are unable law protecting court proceedings in 2013, court – published or broadcast the news. to present this important story to our according to a review of the practice by a These international outlets included the readers in Australia and elsewhere… retired Australian judge, Frank Vincent. Daily Beast, the Washington Post and Press coverage of judicial proceedings is Victoria accounted for about half of all the several Catholic websites.”80 a fundamental safeguard of justice and orders issued in Australia, according to fairness. A free society is never well served the [Sydney] Morning Herald. As a consequence, these news stories by a silenced press.’ could be found within seconds of The orders restrict what journalists can utilising search engines and were being The and Reuters report about certain cases, and when they distributed further and discussed on news services – two of the largest news can report it. global social media platforms such as organizations in the world – also did not Twitter and Facebook. report the news about Pell. Both services But the gag rule has proved futile against have bureaus in Australia that could face the Internet. By Wednesday afternoon, The Australian said: “More than 140 potential liability. Pell and the charges against him were the international news reports about subject of thousands of tweets and shared Cardinal George Pell’s guilty verdict An AP spokeswoman, Lauren Easton, posts on Facebook. The posts included links were published within 24 hours of his issued a brief statement reading, ‘AP to websites where the news was available. conviction last December, despite strict is working to report the story while suppression orders.”81 complying with the gag order.’ She ‘The social-media age has really made declined further comment. this approach untenable in my view, There was little effort to remove any especially in cases like this where there of these mentions except in a few A Reuters spokeswoman, Heather is genuine international public interest instances where overseas media outlets Carpenter, also issued a statement but in the verdict and conviction involving a came to recognise the legal issue declined to comment further. ‘Reuters is a prominent figure in the hierarchy of one surrounding publication. Some overseas global news organization with nearly 200 of the world’s most powerful institutions,’ media outlets flouted their breaching locations around the world — including in said Julie Posetti, an Australian-born of the suppression order with apparent Australia — and is subject to the laws of journalist and academic who is a senior disdain for the reasons why the order the countries in which we operate,’ she said. research fellow at the Reuters Institute for had been issued, arguing the public had the Study of Journalism in Great Britain. a right to know information that was in The Washington Post reported Pell’s the public interest. conviction on Wednesday. But its story Since a gag order suppresses professional was removed from Apple News, the news news reporting but not social-media For instance, the Washington Post said aggregation app owned by Apple Inc. that sharing, it may have the unintended this on December 12 2018: is available in the United Kingdom, U.S. consequence of elevating ‘unverified and Australia. rumour and gossip’ over actual “Cardinal George Pell has been found journalism, she said. guilty in Australia of charges related to NPR, the Daily Beast and the National sexual abuse, according to two people Catholic Reporter, among others, also In a statement, Washington Post executive familiar with the case and other media reported Pell’s conviction. editor Martin Baron said the order would reports, becoming the highest-ranking not deter The Post’s reporting. ‘This story Vatican official to face such a conviction.”82 The suppression order led to bizarrely is a matter of major news significance THESE NEWS STORIES COULD BE FOUND WITHIN SECONDS UTILISING SEARCH ENGINES

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Chief Judge of the County Court Peter Kidd Joe Armao | Fairfax Photos involving an individual of global of legal standards restrict reporters’ in the first trial would prejudice the prominence,’ Baron said. ‘A fundamental ability to publish information related second trial if it went ahead.”87 principle of The Washington Post is to to criminal cases.”85 report the news truthfully, which we did. Interestingly, the breaching of the While we always consider guidelines Lawyer Justin Quill, whose law firm suppression order with news of the given by courts and governments, we must Macpherson Kelley acts for News guilty verdict provoked at least one ultimately use our judgment and exercise Corporation publications, was reported significant response. On December our right to publish such consequential in The Australian as saying: “The 13 — the same day as overseas media news. Freedom of the press in the world will problem is, with this unusual case that was reporting the outcome — the cease to exist if a judge in one country is attracts such international notoriety, Vatican, now presumably aware of the allowed to bar publication of information the international media organisations verdict, announced that Pope Francis anywhere in the world.’ published. That meant individuals in had removed Pell from his inner circle Australia, on Facebook and Twitter and of advisers — the Council of Cardinals. Baron was formerly editor of the Boston other social media, were talking about “Two other council members — the Globe and oversaw its coverage of sexual it and the only people who were not newly retired archbishop Cardinal abuse allegations against priests in the talking about it were the mainstream Laurent Monsengwo Pasinya of Boston archdiocese in 2002. The stories media in Australia. This case is the Kinshasa, 79, and Chile’s Francisco won a Pulitzer Prize and were the basis for perfect storm to demonstrate the law Errázuriz Ossa, 85, who has been the movie Spotlight, which won the Oscar hasn’t kept up with developments in accused of concealing abuse while for best picture in 2016.84 social media.”86 archbishop of Santiago — were also removed from the group of nine on the The New York Times also weighed in The Australian also reported: “Peter council, which is known as C-9.”88 on the use of a suppression order in Bartlett, who represents and the Pell trials: “The slow-moving case several international media outlets Lawyer Justin Quill commented again — charges were filed in June — has such as the BBC and CNN, which on the issue of international reporting been a test of both Australia’s justice did not report on the conviction of the verdict: system and the Vatican’s efforts to for Australian audiences… said hold clerics accountable after decades suppression orders had become When Pell was found guilty the of abuse scandals. It is occurring in a common in Victoria: “Suppression mainstream media wasn’t permitted to tell country where defamation law favours orders are simply out of control. That the Australian public what had happened, plaintiffs, where criminal law protects said, it’s understandable why the Pell while the international media were openly defendants more than it does in many suppression order was made, because reporting it on the internet where it could other countries, and where a number clearly reporting of the conviction be downloaded by Australians.

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Then, private Australian citizens took to social media — Facebook and Twitter in particular — to talk about the case and spread the very news that the mainstream media weren’t allowed to — and didn’t — talk about.

The Herald Sun waited until Tuesday [after the lifting of the suppression order on February 26 2019] to report on this case. International media and some citizens did not.

This is not a criticism of the judge in this case but rather a demonstration that the law has not kept up to date with what technology allows people to do.

The laws of contempt and suppression orders have been around for decades. When the front page of the newspaper was the only real source of news, the law made sense. But we live in a different world and this case demonstrates that.89 CONTEMPT In February 2019, up to 100 individuals and media organisations were sent a letter over breaching the Pell trials’ suppression order. “Victoria’s director of public prosecutions, Kerri Judd QC, has written to as many as 100 individual publishers, editors, broadcasters, reporters and subeditors at the media giants , , the ABC, Crikey and several smaller publications, accusing them of breaching a nationwide suppression order imposed during the case.”90

Judd asked some recipients of the letter to reply by 15 February as to why they should not be charged with contempt of court. All the publications which referenced the Pell case, even obliquely, were targeted because there was blanket suppression on any information about the case. with snapshots of the front pages. The Reacting to the Judd letter regarding the small website alone received five letters breaching of the Pell trials’ suppression Some of the alleged breaches were from the DPP. order, The Age reported: “In a response considered to be more flagrant than to Ms Judd, lawyer Justin Quill, who is others. As many as 30 people at the The Herald Sun published the most representing 53 media clients including Herald Sun and the Age received letters — dramatic piece: a black front page with the those at The Age, writes that the even those who were not involved or who word CENSORED in large white letters. ‘virtually identical’ letters represent a were not working on the day. “The world is reading a very important scatter-gun approach and threatening story that is relevant to Victorians,” the so many journalists without specifics is When the judge was made aware of the page one editorial said. “The Herald Sun ‘inappropriate and disturbing’. breaches he told a closed court they were is prevented from publishing details of this of a serious nature and certain editors very significant news. But trust us, it’s a “Mr Quill writes that the allegations are faced imprisonment... [see more detail story you deserve to read.” wholly without foundation and notes below]”91 that many of those who received letters Importantly, a key cohort of court- had no involvement in the publication The outlets which published or broadcast reporting journalists did not receive of the articles in question, and were pieces in relation to the trial included the “please explain” letters from DPP Judd: greatly distressed. ‘It is difficult to Herald Sun, the Age, Macquarie Media, understand your letters as anything in Melbourne, an ABC radio A group of eight court reporters who other than a concerted and strategic program outside Melbourne and News attended both Pell trials every day, who attack on the media, rather than an Corp’s The Australian. Private Media’s included journalists from Guardian upholding of the law’.”93 Crikey website published a wrap of how Australia and ABC News, did not breach the newspapers covered the Pell verdict, the suppression order.92 The Age later reported: “The day after

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Kidd told the court the publications had this month without referring to the potentially breached the law, brought specifics of the case. improper pressure upon the court and had committed a “potentially egregious and Faine said when suppression orders were flagrant” contempt of court. “properly used” any breaches must be prosecuted. “This week, a large number “A number of very important people in — I am told 70 — media outlets and the media are facing, if found guilty, the journalists across Australia and some prospect of imprisonment and indeed overseas — including sadly one ABC substantial imprisonment, and it may well program — have been asked to show cause be that many significant members of the why they ought not be proceeded against media community are in that potential for a clear breach of a suppression order position,” Kidd said on 13 December. from one of our courts.

Rival news organisations have been “Editors and publishers as well as working together to respond to the journalists could well go to jail. This mass charges. Lawyers for Nine’s the Age prosecution could lead to a test of the and News Corp’s the Herald Sun have powers of the courts in the digital age, prepared a joint response to the DPP, a to control the flow of information that source said. can interfere with the administration of justice. Addressing Pell’s defence barrister, Robert Richter QC, Kidd said the media were “Judge-alone trials — instead of juries “operating on a misinformed basis that — in publicity sensitive matters are it’s OK to print everything and anything part of the answer and must be adopted apart from the name of your client”. urgently.”95

Discussing the Herald Sun report, On March 26 2019, a total of 36 Richter said although Pell’s name was journalists, editors and media not mentioned, the reference to “a very organisations were named as having been prominent Australian figure” meant the summoned to appear in the Supreme “connection cannot fail to be made”. Court of Victoria on April 15 over alleged breaches of the suppression order. The “I am told it was on Wikipedia last night Director of Public Prosecutions called for – I haven’t seen that but it was apparently “orders for imprisonment”. No overseas removed this morning – and so it really is media organisations were summoned.96 a matter for showing cause if there is one,” There was also no action taken against Richter said. global search engines or social media platforms over their publication of Kidd said he believed some of the articles information in breach of the order. George Pell's lawyer were designed to put pressure on the Robert Richter leaves court, a tactic he labelled “breathtaking”. The Guardian reported on the April 15 the County Court Jason hearing: “Prosecutors agreed to a more South, Fairfax Photos The Age reported after the suppression comprehensive statement of claim, order was lifted on Tuesday that its lawyer which will be provided to the court by Justin Quill was representing 53 media 20 May. The defence was ordered to file clients including those at The Age. its response to that statement by 21 The Age and other media published June. The case will next return to the their stories, a court hearing was Quill wrote to the DPP saying that the court on 26 June.”97 held, without notice to the media, “virtually identical” letters had distressed between Judge Kidd, Ms Judd and Pell’s the staff, represented a scattergun FIXING THE SUPPRESSION defence lawyer Robert Richter, QC. approach and were “inappropriate and PROBLEM The transcript was subsequently made disturbing”. It is important that MEAA’s position available to the media.”94 on the press freedom implications “It is difficult to understand your letters regarding the use of suppression orders County Court Chief Judge Kidd’s as anything other than a concerted and is understood. response to the breach of the order was strategic attack on the media, rather than swift. The Guardian said: an upholding of the law,” Quill wrote. MEAA accepts the use of non- publication/suppression orders in When the judge was made aware of the A spokeswoman for Nine Entertainment situations where they are properly breaches he told a closed court they were said Quill was representing all the Nine formatted and where they are of a serious nature and certain editors outlets, News Corp and smaller websites demonstrably required for the faced imprisonment. like Mamamia. “Like a large number of administration of justice. However, as media outlets, we received these letters,” MEAA has stated before in recent press The local online articles were removed she said. “We deny all the allegations freedom reports,98 the courts have been when editors read Kidd’s angry comments made by the DPP.” responsible for misusing suppression in a transcript sent to media outlets. orders. Nine’s The Australian Financial Review, The Melbourne broadcaster , which published Kidd’s angry comments, who has not been sent a letter, mentioned Indeed, the former Victorian Supreme also received two letters from the DPP. the suppression order on his ABC program Court judge Frank Vincent’s review of

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Victoria’s Open Courts Act 201399 was There does not appear to be a significant media. In a speech delivered to the scathing in its findings about the use of overall decrease in the number of Melbourne Club on November 13 2009 suppression orders. It found particular suppression orders made since the Act’s (prior to the Open Courts Act), former fault among the courts themselves, noting passage. Victorian Supreme Court Justice Betty their failure to acknowledge and adapt King boasted that she was “probably to the impact of technological change In 12% of suppression orders made under responsible for the majority of — change that in reality makes some the Act, and in clear breach of a basic and suppression orders imposed in Victoria suppression orders not fit for purpose. simple provision of the Act, there was no in the last three years”103 and that for ground specified at all, general or specific. every worthy media report there were More attention needs to be given to the equally reports that were “inaccurate, education of judges with respect to their In 22% of suppression orders under the Act, salacious, mischievous, morally obligation not only to comply with the “blanket bans” were imposed that either indefensible and just plain prurient”.104 provisions of the Open Courts Act but failed to identify what was to be suppressed with its objectives and, of course, to the or more commonly stated that the order In October 2015, Victorian Chief Justice validity of the foundational propositions covered the “whole or any part of the Marilyn Warren105 (who left office in upon which orders are regularly made. proceeding”, although there appears to be October 2017) wrote about the media’s at least some justification for this result. challenging of suppression orders: In common with other institutions that have been developed over a long period to While there was a problem with the It needs to be remembered that the meet the varying needs of the community, duration period for orders it was not as media has its own interests here: it increasingly rapid changes in the social bad as feared. The review found that wants to attract readers, viewers and and technological environments within most appropriately stated their period online participants. Crime sells. which it must function have presented a of duration; only 7 percent of orders wide range of issues for the legal system. were not sufficiently specific as to their MEAA believes these remarks traduce date of expiry and “there appears to the media to purely commercial entities Some of the traditionally-accepted be no substance to the complaint that while failing to acknowledge the propositions upon which its operating orders were too frequently being made public’s right to know. The narrow view principles and rules have evolved have not for a period of five years”. expressed by the former Chief Justice withstood the scrutiny and investigative may go some way to explain some of the analyses of more recent times. Adaptation The complaint that there was difficulties the media confronts with the of the system to accommodate these new insufficient notice of orders was difficult suppression orders issued by Victorian challenges has been slow and patchy. The to establish: courts. courts, in particular, can be seen to have experienced difficulty in responding to the It was not possible to establish the degree The Vincent review suggested both the substantial changes that are required to to which courts and tribunals met their judiciary and the media had played a address them. obligation to give interested parties part in creating the suppression order such as media organisations notice of mess: This is evident in the manner in which applications for suppression orders.101 the issues posed by applications for There can be little doubt that the suppression orders and related areas The review came down harshly on the approach of the judiciary to the restriction have been approached. The making of courts and judges’ responsibility for the of dissemination of information has been some suppression orders has been based situation: heavily influenced by a justifiable concern essentially upon a number of traditionally about the frequency with which decisions accepted and largely-unquestioned Viewed as a whole, these levels of both and information concerning cases and propositions of dubious validity inherited formal and substantive non-compliance individuals involved in them have been through the common law concept of are both surprising and unacceptable. inaccurately, selectively and unfairly binding precedent.100 presented in the media. Although the absence of grounds and The Vincent review examined the data specific subject matter does not of itself The existence of some tension between the relating to the issuing of suppression indicate that orders should not have judiciary and the media is inevitable as orders in Victoria. The review found that been made or that their terms were they endeavour to perform their respective the courts were clearly making orders inappropriate, they raise doubts, which roles. No institution or group of human improperly and against the spirit of the were reinforced in six consultations beings is likely to be entirely comfortable principle of open justice intended in the conducted with stakeholders and the when their operations are subjected to Open Courts Act: examination of individual transcripts and external criticism or adverse comment. audio recordings conducted in the review, The data collected in the course of the as to the level of awareness of a number of However, and providing that it is Review revealed that, between the period members of the judiciary of their statutory accurately and fairly presented, exposure 1 January 2014 and 31 December 2016, responsibilities and their appreciation of what is happening is essential to Victorian courts and tribunals made of the fundamental importance of ensuring accountability.106 1594 orders with the effect of suppressing transparency in our legal processes.102 information under various sources of As strongly recommended by MEAA in power, with 1279 orders made under the It’s worth remembering two comments its submission to the review,107 Vincent Open Courts Act. made by Victorian judges about the said there is a need to open a dialogue SUPPRESSION ORDERS ARE 19TH CENTURY TOOLS INCAPABLE OF CONTAINING 21ST CENTURY PUBLISHING

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Attorney-General Christian Porter Dominic Lorrimer, Fairfax Photos between Victoria’s courts and the media overseas media outlets. The means of At its core, this issue involves striking to both “clear the air” and develop immediate global news distribution the right balance between open justice workable solutions to the problem: is impossible for a single court in an including the public interest in court Australian city to effectively contain reporting, and the right of the individual The review has not been concerned using an antiquated and ill-suited to a fair trial. In an age of digital with attributing or distributing levels of method like a judge’s non-publication communication and globalisation, responsibility for this mutual distrust order. The issues surrounding the Pell uniformity of suppression orders across but with its possible impact upon the trial have signalled that it is high time Australia should be considered and we operation of our legal system and what the whole regime of non-publication need to recalibrate the balance. This is happening in the courts. It is for this orders be examined in a national is important in order to ensure that reason that the recommendation is context and why a 19th century judicial suppression laws are fit for purpose and made that the Department of Justice and relic is wholly unsuited to today’s world. promote open justice. Regulation establish a mechanism to facilitate discussion between the courts, In discussing the Australia-wide issues Suppression orders should operate in legal practitioners and the media of their arising from the Pell trials’ suppression a consistent manner across Australian differing perspectives and legitimate order, the Law Council of Australia jurisdictions — which does not currently expectations.108 acknowledged that, while Australian happen — to ensure that the right balance court reporting is of an excellent is achieved between open justice and the The Pell trials and the subsequent standard, it is virtually impossible to need for suppression. Media reporting breaching of suppression orders have quarantine jurors from instantaneous of cases that come before our courts is clearly demonstrated the problems with social media postings or second-hand central to open justice — it means that Australia’s suppression order regime. reporting overseas that is quickly not only is justice done, it is also seen accessible via a search engine. to be done. Open justice is one of the MEAA believes suppression orders fundamental attributes of a fair trial are 19th century tools responding to The Law Council has called for national and this means wherever possible, media the age of the printing press but now uniformity of suppression orders and should be able to report on matters that are proving incapable of meeting the an examination of whether such laws come before our courts. challenge of containing 21st century need to be reviewed in the digital era. borderless digital publishing platforms Council president Arthur Moses said While suppression orders and closed such as Twitter, Facebook, Instagram he will ask Attorney-General Christian hearings are appropriate in particular et al and internet search engines such Porter to refer the matter to the cases, such as family court hearings as Google, as well as the global access Australian Law Reform Commission and when hearing evidence from child to news via the web sites of myriad (ALRC) for an inquiry. witnesses, or where an accused may

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otherwise be unable to obtain a fair the number of unnecessary orders all orders for inclusion in a central, hearing, their need should always be and direct attention to what may be publicly accessible register. (This, balanced with the broader public interest required in the circumstances.) it is considered, would be far more in open justice. b. The making of orders would be satisfactory an arrangement than approached in the understanding the present one under which each The internet has no borders, so something that the principle of open justice body separately informs 7 media that is suppressed in Australia can be is fundamental to our legal system organisations or individuals on an reported in other countries by journalists through the insertion of a preamble email list of notice of an application who have not been present in the court to the Open Courts Act and the for suppression or the contents of an room. Our journalists are amongst the recognition that orders constitute order.) best trained and respected in the world exceptions to open justice, where e. A judge making an order would and informed reporting of our legal necessary in the circumstances of the be required to address each ground system maintains public confidence in the case. (This is intended to address the on which it is made and prepare a judiciary and the courts.109 current treatment of the principle of statement of reasons for doing so, open justice as nothing more than a including the justification for its terms MEAA’s condemnation of the excessive statutory presumption in favour of and duration. As far as practicable use of suppression orders was made transparency.) in the circumstances, this would be clear in its a detailed submission to the c. All orders, whether by application of publicly available. (This is of special Vincent review.110 MEAA welcomed that a party or on the court’s own motion, importance where the order is made the review took on board so many of would be treated as interim for a period on a general ‘interests of justice’ MEAA’s recommendations. of five days after which, in the absence ground but it is principally directed of an application for it to be set aside to ensuring that there is both formal The Vincent review recommended: or varied, it would operate according and substantive compliance with the to its terms. (This recommendation statutory obligations and the principle If adopted, the broad features of the is directed to ensuring that, as far as of open justice.) suggested framework governing the making is practicable and consistent with the f. Interested parties (such as media of orders would result in a situation where: purposes of the order, an opportunity representatives) would be able to a. The power to make orders would be must be afforded to those concerned to appear to object to the making of an restricted to circumstances where there object to its making or terms.) order or its terms. The judge would were no existing statutory restrictions d. The court or tribunal would be be able to secure the assistance of the on disclosure of the information required in the absence of good Public Interest Monitor as contradictor involved. (This should assist in reducing reason to the contrary to transmit to assist in this process. (The objective

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of this recommendation is to ensure the proposed amendments, courts information, and access to information that the necessity for an order is will have to give reasons for making in NSW courts and tribunals. properly considered and that its terms suppression orders, outlining the basis are clear, an important consideration in on which it is made, its duration, and In particular, the Commission is to consider: the event of a possible breach.) the scope of information it covers.” a. Any NSW legislation that affects g. Entry of the order on the register, access to, and disclosure and supported by the reasons for its making, The matter of resourcing the publication of, court and tribunal would be regarded as sufficient notice Public Interest Monitor to act as an information, including: to any who may wish to disseminate intermediary and contradictor in the • The Court Suppression and Non- the information that the order had been issuing suppression orders is still being Publication Orders Act 2010 (NSW); made. (A central register would also be considered. The Vincent review said • The Court Information Act 2010 of value in the overall monitoring of the the Monitor needed additional funding (NSW); and use of suppression orders and in their and resources necessary to perform the • The Children (Criminal Proceedings) enforcement.) following functions: Act 1987. h. Orders intended to expire at the b. Whether the current arrangements completion of a proceeding would 1. The Monitor should be empowered, strike the right balance between the continue in effect until the period if requested by the judge to appear proper administration of justice, the allowed for appeal had also passed. as contradictor, to make submissions rights of victims and witnesses, privacy, In the event that an appeal had been and ask questions when the judge is confidentiality, public safety, the instituted the order would remain in determining whether orders should be right to a fair trial, national security, force until revoked or varied by the made under the Open Courts Act, on commercial/business interests, and the appellate court or on the completion of what grounds and the framing of their public interest in open justice. that proceeding. (This recommendation scope. c. The effectiveness of current is made to simplify the process by 2. Orders, once made, can be referred enforcement provisions in achieving the avoiding the necessity for applications to the Monitor for consideration right balance, including appeal rights. for continuance of orders in these by interested parties to enable the d. The appropriateness of legislative situations.) i independent consideration of the provisions prohibiting the i. The distinction between proceeding need, terms and duration of the order identification of children and young and broad suppression orders would while maintaining the security of the people involved in civil and criminal be removed. (What is important is underlying information. The Monitor’s proceedings, including prohibitions on that the purpose, terms and duration decision whether or not to pursue the the identification of adults convicted of of an order are clearly identified, not review of an order is final. offences committed as children and on whether the order relates to a single 3. If it is considered necessary in the identification of deceased children proceeding. Removal of the distinction the public interest to intervene, the associated with criminal proceedings. would produce a simpler structure and Monitor should be able to seek the e. Whether, and to what extent, avoid the complexities and necessity review of the order by the judge or suppression and non-publication for several orders to be made that can prosecute an appeal. orders can remain effective in the occur under the current provisions.) 4. The Monitor would report annually digital environment, and whether there j. Enforcement of orders would be more to the Attorney General on the are any appropriate alternatives. realistic. (The reduction in the overall operation of the Open Courts Act.113 f. The impact of any information number of orders, the clarification access regime on the operation of NSW of their terms and duration and the The Andrews Government has also courts and tribunals. establishment of a single central asked the Victorian Law Reform g. Whether, and to what extent, register to which the media and Commission to review contempt technology can be used to facilitate others who wish to disclose protected of court laws and enforcement of access to court and tribunal information would be expected to have suppression orders. The Commission information. recourse, should substantially improve is due to report to government on h. The findings of the Royal the position. At present, the Director December 31 2019.114 Commission into Institutional of Public Prosecutions encounters Responses to Child Sexual Abuse difficulty at all of these levels.) MEAA believes that the Pell case regarding the public interest in k. The Public Interest Monitor should and the Vincent review have sparked exposing child sexual abuse offending. be required to report annually on the a conversation that demonstrates i. Comparable legal and practical operation of the system. (This should the urgent need to examine the use arrangements elsewhere in Australia involve any issues identified by the and misuse of suppression and non- and overseas. Monitor when acting as contradictor publication orders in Australia. j. Any other relevant matters. and more generally from the data obtained from the central register.)111 A review of the different orders regimes A uniform suppression order regime across the country is required with must uphold the principle of open MEAA supports the Vincent report’s the aim of creating a uniform national justice; apply sensible, practical and recommendations. approach. limited-time orders in situations where they are justifiably required; allow The Act is now subject to two tranches On February 28 2019 the NSW Law a properly resourced Public Interest of amendments112 implementing most of Reform Commission announced an Monitor to play the role of contradictor the Vincent review’s recommendations. “open justice review”.115 The review rather than always relying on the media Of the first tranche: “The Bill will would on the operation of legislative to fund challenges; and to create an require that suppression and closed prohibitions on the disclosure or accessible register of orders so that all court orders only be used when publication of NSW court and tribunal interested parties can be kept informed. necessary, such as where publication information; NSW court suppression of information would be unfair, or risk and non-publication orders, and The Vincent review’s recommendations harming victims or other parties. Under tribunal orders restricting disclosure of show the way.

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WE KNEW GEORGE PELL WAS GUILTY OF CHILD SEX ABUSE. WHY COULDN’T WE SAY IT UNTIL NOW? BY MICHAEL DOUGLAS AND JASON BOSLAND. FIRST PUBLISHED BY THE CONVERSATION, FEBRUARY 26 2019

ardinal George Pell, An Australian could easily find foreign The tension between the survivor’s Australia’s most-senior news coverage of the matter on Google. position, and the public’s interest in Catholic, one of the most So what’s the point of the suppression understanding the full horror of Pell’s powerful Catholics in the order at all? crimes and hypocrisy, demonstrates how world and a man once praised Australian law strikes a balance between Cby as a “fine man”116, The verdict came after a trial, which open justice and other values. molested two choirboys in the 1990s. was described as the “cathedral trial”, in Victoria’s County Court. An earlier The principle of open justice is summed On 11 December 2018, a jury found 2018 trial on the same charges as the up by the idea that “justice should not Pell guilty117 of one charge of sexually cathedral trial .118 The retrial began in only be done but should be seen to be penetrating a child under the age of 16, November and the conviction followed done”. It is a fundamental principle of as well as four charges of an indecent in December. our legal system.123 act with a child under the age of 16. He did this when he was Archbishop of Pell was also facing a separate jury But it is not an absolute principle. Melbourne. The incidents took place at trial — known as the “swimmers Courts have various powers124 to St Patrick’s Cathedral. trial” — in respect to different events. depart from open justice by closing That trial would have dealt with proceedings to the public, concealing The verdict and the proceedings that alleged child sexual offences at a information from those present in led to it were subject to blanket ban swimming in in the court, or by prohibiting or otherwise suppression orders, which prohibited 1970s.119 Last Friday [February 22 restricting publication of material. any reporting on proceedings involving 2019], evidence prosecutors were Pell. Today those orders were lifted. relying on for the swimmers trial was A “suppression order” is a kind of deemed inadmissible.120 As a result, the court order that prevents people from But today’s story has been a long time swimmers trial will now not proceed. reporting on court proceedings. In Pell’s coming. case, the suppression orders were made The end of the swimmers trial means under section 17 and section 18(1)(a) of In December, a number of Australia’s the suppression orders are no longer Victoria’s Open Courts Act 2013.125 leading news organisations needed. But there is still information published headlines about the Pell that hasn’t been made public. The court decided it was “necessary to verdict without mentioning him by prevent a real and substantial risk of name. They referred to “the nation’s We still don’t know the identity of a prejudice to the proper administration biggest story” while carefully, yet survivor of Pell’s crimes whose evidence of justice that [could not] be prevented begrudgingly, providing no details. was key to Pell’s conviction in the by other reasonably available means”. Less reputable corners of the internet cathedral trial. Through his lawyer, were spilling the beans too. #Pell was that man has asked for privacy.121 He A misconception is that the suppression trending on Twitter and on the front deserves it. Sadly, the other former orders were sought to protect Pell’s page of Reddit in Australia. choirboy died in 2014.122 reputation, or that of the Catholic

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is facing multiple criminal trials. In Where an order can’t be backed up this sense, the Pell suppression orders with a threat of physical force, you were not unusual. However, such orders might call it futile. Such orders have appear to be less common in other been called “paper tigers”.132 To put it Australian jurisdictions. In a recent another way: a court should not bark judgment of the NSW Court of Criminal unless it can bite. Appeal, Nationwide News Pty Limited v Qaumi128, it was observed that a back- The Pell trials illustrate how attempts to-back trial is an “exceptional case”. by courts to control the dissemination Nevertheless, in rare circumstances, the of news in Australia may be rendered continued suppression of information of futile by foreign press, social media, a first trial might be justified to protect and old-fashioned word of mouth. As a second trial. one journalist said:

The outrage surrounding the Pell The idea that one judge in a Melbourne suppression orders should be understood court could really define what the world against this backdrop. But there are still can read about a figure of such global things to be concerned about. significance I think is a real shock to the world.133 The public should be told why this case was suppressed. However, it is rare for an Australian suppression order to be rendered futile Given the current misconceptions by the global media market. Most cases about the purpose of the suppression where suppression orders are granted orders in the Pell trials, the public are only of interest to local media. ought to be provided with a set of Media organisations generally comply written reasons explaining why the with these orders and the vast majority court decided they were justified. are effective. Courts have a duty129 to provide reasons for their decisions. This duty flows In this case, although it was a pain in from the principle of open justice. the neck for journalists, arguably, the suppression order achieved its purpose. The public is more likely to have The sanctity of Pell’s swimmers trial George Pell arrives at the Melbourne confidence in an open and transparent was protected. Every Australian should County Court for sentencing. | Jason system of justice. The rule of law works be entitled to a fair trial. South Fairfax Photos best if society believes the law is being applied fairly. The court’s written The laws that suppressed Pell’s guilty reasons for suppression in the Pell verdict are under review. Victorian Church. Although that may have been trials – if they exist – should be easily Premier Daniel Andrews vowed to an indirect result of the suppression available to the public to aid their overhaul the state’s approach to orders, that is not why they were made. understanding of this case.130 suppression orders, implementing many recommendations of a recent The orders were sought by the Journalists who ignored the court’s review of the 2013 Open Courts Act.134 prosecutors to protect the integrity of order now face serious consequences. the swimmers trial. They were made They could be “found in contempt” Although other states don’t share under legislation from Victoria. Other for disobeying the court. It has been Victoria’s act, it would be sensible parts of Australia deal with open justice reported as many as 100 journalists are for the whole of Australia to revisit differently.126 But courts in every state in the firing line. the circumstances in which courts have principles that share the common prohibit access to information and hold value that the administration of justice A person found guilty of contempt individuals in contempt. Courts should may justify suppressing information in could face imprisonment, or fines, be open as much as possible. certain cases. or both. Recent experience suggests Australian courts are willing to flex Political philosopher, Jeremy Bentham, A fundamental democratic value is that their muscles over people who disobey once wrote that “publicity is the very a person is innocent until proven guilty. suppression orders. For instance, in soul of justice”. The message echoes in Media reporting on Pell’s case may 2017, blogger Shane Dowling was sent 2019 with the , “Democracy Dies have resulted in “prejudicial publicity”, to jail for refusing to remove identifying in the Darkness”.135 Now Pell’s guilt is undermining the neutrality of the information about alleged affairs.131 out in the open, we can finally see that jury system, and so undermining the justice has been done. integrity of a conviction. 127 But Australian courts, like those of other places, do not have authority over Michael Douglas is senior lecturer The concern was that reporting of the the entire world. The court’s jurisdiction in law, University of Western cathedral trial by the media would — its “authority to decide” — is limited Australia and Jason Bosland is have had the effect of prejudicing by geography. In a practical sense, deputy director of the Centre for the impartiality of the jury in the Australian courts don’t have authority Media and Communications Law at subsequent swimmers trial (were it to over foreign journalists based overseas. Melbourne Law School, University go ahead). Enforcement of an order against of Melbourne. This story was international media organisations originally published on February In Victoria, blanket ban suppression without a presence in Australia would 26 2019 on the web site The orders are often made when an accused be extremely difficult, if not impossible. Conversation.136

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and yet the jury acquitted the accused… If we, in fact, carry that argument too far we find there are certain people who can never be tried… There are many situations in which this kind of argument is raised. The reason that I have come in so forcefully against it is that works on the assumption that you cannot trust people to act impartially as jurors if they possess that kind of information. I just don’t accept that and I don’t accept that after 50 years of working with juries.”

Morris-Marr: “I would say that what Former Victorian Supreme may be slightly different about this Court justice Frank Vincent [Pell] case now is the social media Joe Armao | Fairfax Photos access and everything that means you are getting it on your phone; those jurors might see it on Twitter. It is everywhere. It is not just on the front of the Herald Sun and The Age. They are SUPPRESS OR NOT? surrounded by it.” Bosland: “The concern here was he day that Victorian County must always be regarded as exceptional about the prejudice that might affect Court Chief Judge Peter Kidd to the concept of open justice. That potentially the second trial… When sentenced Cardinal George was lost… lost for a number of reasons. we look at the law around staying a Pell’s to a maximum of six One of them was, of course, the toxic criminal proceeding on the basis of years’ jail over Pell’s sexual relationship between the media and prejudicial media publicity, the bar is set Tabuse of two choirboys, the University the courts. There was no doubt that extremely high. When we are looking at of Melbourne’s Centre for Advancing the courts were very sensitive to the suppression orders, the bar appears to Journalism organised a public panel criticisms which were being made of be substantially lower. Now you can’t discussion that was subsequently turned the work that was being done and, say: well, in one context the person will into a podcast.137 on occasion, to the unfairness of the be able to receive a fair trial — the stay representations that were made to that context. But in the other context: oh no, The Centre brought together “several work. I think that led to an unnecessary we have to grant the suppression order experts with wide-ranging experiences making of orders. It doesn’t matter if you because they won’t be able to receive a of suppression orders to discuss how are a judge or in any other , fair trial. Either they can or they can’t. they affect the public’s right to know and you don’t really like being criticised very Now, if… in the situation where courts whether the laws should be reformed”. much and still less do you like being are making orders in order to protect criticised if you think it is unfair. But the jury as a sort of… a convenience The panellists were associate professor there always had been a wider use of almost to ensure the fair trial can be Jason Bosland, co-director of the Centre suppression orders in this state than in obtained then that is not necessity. for Media and Communications Law others — it was part of the culture.” The test is necessity. Is it necessary or at Melbourne Law School; Melissa is it not necessary? You can’t have a Davey, Melbourne bureau chief for The Davey: “There is undoubtedly a need different application of that question in Guardian, who sat through every day for a conversation about the overuse the two different contexts.” of the George Pell trial; Lucie Morris- of suppression orders… There is also Marr, who also sat through the entire a really useful conversation to be had Davey: “Both defence and prosecution Pell proceedings covering the trial for about how effective can suppression wanted the suppression order. It was by the New Daily; and former Supreme orders be in this era of social media. no means something that only Pell and Court of Victoria Justice Frank Vincent But it doesn’t stand to reason that that his lawyers wanted…” AO QC who conducted a review of court means a suppression order was not suppression orders and Victoria’s Open beneficial and the right thing to do in Vincent: “That is one of the defects Courts Act 2013. The forum was chaired this particular case. The suppression of the way in which our system has by Centre’s Dr Denis Muller. order in this case was not unprecedented, operated in Victoria. If the crown and it was not special treatment; hundreds the defence came along and asked for Here are some edited excerpts from of these suppression orders are issued suppression orders then they were the discussion, examining some of every year in Victoria. The key fact is in almost always granted without any the issues surrounding the use of this case is that Pell was to face another significant analysis by the court of the suppression orders. trial. Think about the coverage over the open justice principle. They could often past couple of weeks and just how much have their own quite distinct reasons Vincent: “The Open Courts Act was you’ve seen of Pell. Would it be possible for wanting those orders made and they designed to try and reduce the number to empanel an unbiased jury in the face weren’t always reasons that would be of orders but it didn’t work… There has of all of that coverage?” acceptable to the public.” been a culture in Victoria of the making of orders for a wide variety of reasons Vincent: “My answer to that question Davey: “…The media are able to and without anything like adequate is, quite possibly, yes. Because I have challenge suppression orders. They examination of the necessity for them, seen trials where the prejudice against aren’t issued and then you have no nor emphasis upon the fact that they the individual was absolutely enormous recourse. Not one media organisation

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sent a lawyer to contest that [Pell trial] suppression order in Victoria. It is a bit rich to get up and say WHISTLEBLOWER suppression orders are terrible, what a blight, when you don’t even send a media lawyer to contest it.” PROTECTION Bosland: “The media I spoke to said that if there’s going to be a case n February 19 2019 the companies that are trustees of a where a suppression order should Treasury Laws Amendment superannuation entity must have a be granted, this is the one… I find it (Enhancing Whistleblower whistleblower policy from January 1 remarkable that the media then, on Protections) Bill 2018 was 2020, and large proprietary companies the day of the verdict, were jumping passed by both houses must have a whistleblower policy from up and down saying we’ve been Oof the parliament. (MEAA made a January 1 2021. censored. They had been censored, submission to the Senate Economics but they had every opportunity to go Legislation Committee’s inquiry into “There is no longer a requirement along and challenge that order.” the Bill on February 22 2018.)138 The for a whistleblower to reveal their Act, which seeks to mandate and extend identity when making a disclosure On the letters sent by the Victorian whistleblower protection to the private and whistleblowers must be permitted Director of Public Prosecutions to sector, received assent on March 12 2019. to make disclosures anonymously. about 100 journalists and editors Whistleblowers can by law make a asking them to show cause why they The new Act “was introduced in disclosure directly to the Australian should not be proceeded against for response to the perceived lack of Securities and Investments Commission contempt of court for breaches of a protection scheme applicable to (ASIC) or the Australian Prudential the suppression order when the Pell whistleblowers in the corporate arena, Regulation Authority (APRA). Companies guilty verdict was, as Muller said and the complexities raised by the should consider the circumstances in “hinted at”, when it was brought otherwise ‘confusing web’ of existing which they will contact ASIC, APRA, or down on December 11 2018 the whistleblower protection regimes. In the Australian Federal Police in respect suppression order was still in place: summary, the Bill: of a whistleblower’s disclosure. • amends the Corporations Act to Vincent: “…If you have orders, strengthen and consolidate pre- “Penalties apply if the confidentiality of you can reasonably anticipate they existing whistleblower protections a whistleblower’s identity is breached, or will be complied with. If you have a into a single protection regime; if an employee or officer of the company system under which, once the order • amends the Taxation Administration causes ‘detriment’ (whether through is made and ignored [and] there is Act to create a protection regime for actual actions or through the making of no sanction, no consequence, well… whistleblowers who report breaches of threats) to the whistleblower, and a court what’s the point? The DPP obviously tax law and misconduct; and has the power to order compensation in has acted on that basis.” • otherwise repeals existing financial respect of the detriment suffered. The sector whistleblower protections.”139 financial penalties are a maximum of Morris-Marr: “Laws were broken. $200,000 for an individual, or $1 million Contempt of court and breaching a The Act makes it mandatory for public for a company.” 140 suppression order’s a serious crime companies and large proprietary and can get you five years in jail…. Fair companies (defined as those with The Bill was amended to take into enough. I think that is quite right.” revenues exceeding $25 million per account concerns MEAA had with annum, gross assets of $12.5 million or aspects of the Bill. The requirement Bosland: “I think it is overkill in more than 50 employees) to introduce that a whistleblower wait “a reasonable some respects. My understanding is whistleblower policies. period” of time after making an initial that letters were sent out to people… disclosure to a regulator before making that were not directly involved in The whistleblower policy must include: a protected emergency disclosure to any breach of any order. There are • the protection available to a parliamentarian or journalist was four potential charges where people whistleblowers removed. A whistleblower now has to have to explain why they shouldn’t • the persons to whom disclosure can be ensure the extent of the information be charged with those offences. One made that qualify for protection, and disclosed in the emergency disclosure was sub judice contempt. Another was how such disclosures can be made is no greater than is necessary to scandalising the court. Now I can’t • how the company will support inform the recipient of the substantial see for the life of me how it could whistleblowers and protect them from and imminent danger. An emergency be a scandalising contempt… where detriment disclosure must be based on the you publish something where you • how the company will investigate whistleblower having reasonable bring the authority of the court into disclosures that qualify for protection grounds to believe the information disrepute… I can’t see how anything, under the Corporations Act disclosed concerns a substantial from what I have read, that any of the • how the company will ensure fair and imminent danger to the health publications have done that… The treatment of employees who are or safety of one or more persons or other is the breach of the order and I mentioned in eligible disclosures to the natural environment. MEAA have no doubt that some publications • how the whistleblower policy is to also welcomed an important change did that… that is engaging in conduct be made available to officers and recommended by MEAA that redefined which undermines the efficacy of the employees, and “journalist” to “cover journalists order… I think there was overkill in • any other matters prescribed by working for an electronic service the number of people that were sent the Corporations Act in terms of operated on a non-commercial basis letters and the fact that they each had whistleblowing. by a body that provides a national to answer to these four charges.” Public companies and proprietary broadcasting service”.141

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The Act represents a significant initial step forward in understanding and responding to the need for whistleblowers to be able to report instances of wrongdoing and ensure their concerns will be listened to and acted upon without fear of harassment or intimidation. There is still more that must be done to encourage and protect whistleblowers to feel confident that they can safely tell their story.

The role of the journalist in ensuring those stories are told and, more importantly, heard and acted upon has been crucial. Nine (formerly Fairfax) business journalist Adele Ferguson spoke of the courage of whistleblowers when paying tribute to them after being honoured in the 2019 Australia Day awards by being appointed a Member of the Order of Australia. Ferguson worked with many corporate whistleblowers when reporting on the financial services sector (leading to the Hayne Banking Royal Commission) and franchises. “With all of these investigations, none of them would have had the traction they had without whistleblowers putting everything on the line and the victims coming forward. Words fail me over how brave these people are. And they empower others to speak up and it becomes a snowball effect.”142

There are also considerable risks for the journalist. In July 2018 Ferguson had spoken “of up to seven writs facing her over a single story, 143 of Australia’s richest woman Gina Rinehart’s legal team demanding she give up sources or face jail,144 threatening phone calls and even “people lurking outside the house in dark cars”.145

Despite the welcome move to protect whistleblowers in the private sector, prosecutions of public sector whistleblowers who have told their stories to journalists continue. It should be remembered whistleblowers, by definition, seek to expose wrongdoing. The wrongdoing may be illegal or unethical. It may be a breach of rules, regulations, policies or the law. It may be something more serious such as threats to national security or public health and safety, as well as or corruption.

While the honesty of a whistleblower should be championed, invariably, a whistleblower causes embarrassment. By choosing to bring their accusations to light by contacting a third party such as a journalist they face reprisals or retaliation. Witness K's lawyer Whistleblowers in the public sector are Bernard Collaery Jeffrey facing devastating legal action to punish Chan, Fairfax Photos them after the fact — that is disturbing

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THE IMPLICATIONS FOR JOURNALISTS ARE PARTICULARLY STARK

— particularly from a government that Meanwhile three current examples the cabinet offices in Dili, , believes in openness and transparency. demonstrate the damage that can be to insert listening devices into the wall, At worst, governments talk big about inflicted on whistleblowers without of walls to be constructed under an whistleblower protection while wielding sufficient protection. A fourth Australian aid program.”151 enormous power to muzzle, silence and incident has raised concern over the punish whistleblowers in the public press freedom implications over a The 2018 charges claim the pair illegally sector. government-sought extradition to the disclosed information in breach of US. section 39 of the Intelligence Services The implications for journalists in these Act. Collaery is accused of unlawfully unfair retributions are particularly stark. WITNESS K communicating intelligence secrets to Whistleblowers take enormous risks to Legal action was initiated in June 2018 journalists. Collaery and Witness K face make contact with a third party in order against former spy Witness K and his the possibility of jail if convicted. to reveal the wrongdoing which they lawyer Bernard Collaery who are being bring to light in the firm belief of the prosecuted for their roles in revealing a RICHARD BOYLE public’s right to know. Journalists rely on 2004 covert Australian spy operation to Australian Tax Office whistleblower whistleblowers to supply them with an bug the Timor-Leste government during Richard Boyle faces a staggering 161 important news story that is legitimately sensitive oil and gas negotiations. years in prison for exposing misconduct in the public interest. Journalists have by the ATO. He has been charged ethical obligations to protect the identity The case began only after prosecutors with 66 offences, including telephone of confidential sources — not least had sat on evidence for three years tapping and recording of conversations because of the retribution they may face. — the Australian Federal Police had without the consent of all parties begun its investigation in February and making a record of protected But increasingly, journalists are 2014 and a year later had presented information, and in some cases passing being used in the hunting down its brief of evidence to the Director of that information to a third party. He of whistleblowers. The metadata Public Prosecutions. Charges weren’t faces the prospect of six life sentences. retention regime introduced in 2015 via filed until May 2018.149 Since then the amendments to the Telecommunications case has progressed in secrecy and His revelations, including directives to (Interception and Access) Act 1979 slowly — partly because the court needs automatically seize funds from small created Journalist Information Warrants. to protect sensitive national security business and individual accounts, blew The amendments were included in material while also preserving the the lid on alleged abuses by the ATO the third tranche of national security defendants’ right to a fair trial.150 and prompted a joint investigation by laws in the fight against terrorism — as The Age, The Sydney Morning Herald outlined in MEAA’s 2015 press freedom Witness K, is a former Australian and the ABC. It also triggered the report: Going after Whistleblowers, Secret Intelligence Service agent, who legal action being brought by Tax Going after Journalism.146 The law became concerned about the bugging Commissioner Chris Jordan. has been created to hunt down and operation, which diverted resources punish whistleblowers. The legislation from the Bali bombings. In an affidavit The revelations also prompted the House specifically states that the aim of he said the bugging was “immoral and Standing Committee on Tax and Revenue secretly accessing journalists’ and media wrong”. He approached the inspector to make 37 recommendations including organisations’ telecommunications general of intelligence services. He was to “recommend a new Tax Office charter, data using the warrant is in order “to permitted to approach an approved an appeals group headed by a second identify… a source”.147 lawyer, Collaery. independent commissioner, the transfer of debt-recovery functions into the ATO’s As has been seen above, Australia Collaery came to the belief that the compliance operations and a restructure has been slow to offer protections for operation was unlawful, and helped of compensation processes.” 152 whistleblowers. But even as legislation Timor-Leste mount a case to be heard in is drafted or amended to provide Permanent Court of Arbitration in The The Tax Office had rejected an improved ways for whistleblowers to Hague. Witness K had his passport seized investigation request from Boyle get their story out in order to promote before he could depart to give evidence. months before he went public over positive change, the protections remain allegations the agency was ripping inadequate for whistleblowers working On December 3 2013 Collaery’s offices money out of individual and small for government agencies. were raided by Asio on orders of then business accounts under a directive to Attorney-General . use more heavy handed debt collection The variance in the protections offered tactics. Boyle informed the Tax Office’s in the private corporate sector versus The following day, in response to the internal watchdog that staff had been protections available for whistleblowers raid and the seizure of Witness K’s instructed to start issuing garnishee working for public government sector passport, Collaery told the ABC: “The notices to meet revenue targets — a tool are unnecessarily cruel. Labor has director-general of the Australian Secret used to scrape money from accounts, pledged to bring existing private and Intelligence Service and his deputy sometimes without the account holder’s public whistleblowing laws under a instructed a team of ASIS technicians to knowledge. A letter from the Tax single Whistleblowing Act and establish travel to East Timor in an elaborate plan, Office’s senior investigator in October a Whistleblower Protection Authority using Australian aid programs relating 2017 dismissed Boyle’s concerns. “The with a rewards scheme.148 to the renovation and construction of information you disclosed does not,

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Tax Commissioner Chris Jordan Christopher Pearce Fairfax Photos

to any extent, concern serious and wrote: “Arguably Australia’s most controversial cases relating to the death disclosable conduct. A disagreement significant whistleblower, the man who of a man and his six-year-old child with government policy is not forced both our major political parties during a raid on his house, and the disclosable conduct.”153 to alter their small business taxation killing of a detainee who was alone with appeal policies, is now set to face a a soldier and was alleged to have tried “Mr Boyle has previously said he made court battle. That’s the cost of being a to seize his weapon.”158 a 12,000 word disclosure to the Tax whistleblower.”156 Office, but claims this was rejected by In the ACT Magistrates Court on March tax authorities. The Australian Federal DAVID MCBRIDE 7 2019 McBride was formally facing five Police raided his home days before he A lawyer, retired major charges for leaking classified material to went public and only a month after David McBride, is charged with theft three senior journalists at the ABC and the ATO offered him a settlement over war crimes investigation files that the then newspapers. to prevent him from speaking out.” were allegedly handed to journalists. He The disclosure may offer Boyle some was arrested and charged on September The ABC reported: “Mr McBride has protection under the public sector’s 5 2018 by Australian Federal Police as not entered pleas to any of the charges, Public Interest Disclosure Act 2013.154 he was about to depart Sydney airport to but outside court said he was ‘not return to his home in Spain. making any bones about’ his role in Boyle’s home was raided in April the events. ‘There’s no question in that 2018 by the Australian Federal Police McBride’s Sydney home was raided in I’ve told the Federal Police I did give accompanied by an ATO investigator. February 2018 — the search warrant the classified documents to the Herald, The ABC reported: “He attempted was seeking any information relating to to the ABC, and to [journalist] Chris to film the raid but the AFP officers ABC journalists, various military files Masters,’ he said. ‘I’m seeking to have seized his mobile phone, and the and topics and the “7.30 Report” and the case looking purely at whether phone of his fiancée. The warrant “”. It’s alleged that classified the Government broke the law and specifically refers to Four Corners and Defence documents were provided to whether it was my duty as a lawyer to Fairfax reporter Adele Ferguson, and ABC journalists and then later publicly report that fact.’ Mr McBride said he alleges that Richard Boyle had illegally released on July 10 and 11 2017.157 had tried internal processes within the taken either originals or copies of department to bring his allegations of taxpayer information, photos of ATO “On July 11, 2017, the ABC’s 7.30 wrongdoing to light, but went to the computer screens or emails. Mr Boyle program released a major investigation press when that was not successful.”159 said there was some suggestion from called The Afghan Files. The story was the AFP and ATO officers at his home promoted as ‘Defence leak exposes The Guardian reported: “‘I think it was that he had committed a crime in deadly secrets of Australia’s special swept under the carpet,’ McBride told speaking to the media. “It’s absolutely forces’. It featured extraordinary reporters on Thursday. ‘I eventually astonishing. I’m horrified that this detail about investigations, including saw the police; they didn’t do anything organisation has these powers over 10 incidents between 2009 and 2013 about it. Finally, I saw the press, and the community and I think things where special forces had allegedly it was published on the ABC. They’ve need to change,” he said.”155 shot dead insurgents and unarmed threatened me all along with going civilians, including children. Among to jail. If I was afraid of going to jail, The Australian’s Robert Gottliebsen the investigations mentioned were why would I have been a soldier?

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Unfortunately there are too many people taking into account the US Sentencing have been cited in any US government in Canberra who are afraid. Plenty of Guidelines and other statutory legal actions as a result of the publishing people knew what I knew, but no one factors.”161 they have done in collaboration with else stood up.’” He said he wanted the WikiLeaks. court to simply consider whether the On April 12 2019 MEAA wrote to the government’s actions were illegal. British High Commissioner, Foreign In 2011 the WikiLeaks organisation was Minister and Opposition awarded the Walkley Award for Most EXTRADITION Spokesperson on Foreign Affairs Penny Outstanding Contribution to Journalism On April 11 2019 the publisher of the Wong raising concerns about the press – in recognition of the impact WikiLeaks’ WikiLeaks web site was freedom implications of extradition to actions had on public interest journalism arrested in London. The US government the US. MEAA wrote: by assisting whistleblowers to tell their has sought his extradition. The US stories. The judges said WikiLeaks applied federal Department of Justice said Your Excellency, new technology to “penetrate the inner Assange was arrested “pursuant to the workings of government to reveal an US/UK Extradition Treaty, in connection We write to convey concerns about avalanche of inconvenient truths in a with a federal charge of conspiracy to the possible extradition to the United global publishing coup”. commit computer intrusion for agreeing States of Julian Assange, the publisher to break a password to a classified U.S. of WikiLeaks, and urge the UK and Extradition of Mr Assange and government computer. 160 Australian governments to oppose prosecution by the United States would extradition to that country. set a disturbing global precedent for the “According to court documents unsealed suppression of press freedom. today, the charge relates to Assange’s Mr Assange is an Australian citizen and alleged role in one of the largest has been a member of MEAA’s Media We welcome the provision of Australian compromises of classified information Section – the trade union and professional consular assistance. We urge that he in the history of the United States. association of Australian media workers – be provided with medical assistance since 2007. if required. The Australian and UK “The indictment alleges that in governments should publicly oppose the March 2010, Assange engaged in a MEAA is concerned that Mr Assange is extradition of Mr Assange to the United conspiracy with Chelsea Manning, a facing possible extradition to the United States.162 former intelligence analyst in the U.S. States regarding WikiLeaks’ publication Army, to assist Manning in cracking of US government files nine years ago. Human Rights Watch also expressed a password stored on US Department We believe a prosecution of WikiLeaks’ concern at the press freedom of Defense computers connected to personnel will have a chilling effect on the implications. “Prosecuting Julian the Secret Internet Protocol Network public’s right to know what governments Assange for acts often associated with (SIPRNet), a U.S. government network do in the name of their citizens. publishing news of public importance used for classified documents and – including sensitive or classified communications. It is a principle of a free press that the information – has potential to open a media have a duty to scrutinise the dangerous precedent for every news “Manning, who had access to the powerful and to hold them to account. The organization,” said Dinah PoKempner, computers in connection with her media report legitimate news stories that general counsel at Human Rights duties as an intelligence analyst, was are in the public interest. Watch. “The Trump administration’s using the computers to download open hostility to ‘mainstream media’ classified records to transmit to WikiLeaks was established in a way to has contributed to an increasingly WikiLeaks. Cracking the password allow whistleblowers seeking to publicly dangerous environment for would have allowed Manning to log on expose wrongdoing to upload material investigative journalism worldwide. to the computers under a username anonymously and with no possibility of that did not belong to her. Such a being traced. This is common practice “There is a real danger that the deceptive measure would have made among media organisations around the Assange case could become a model it more difficult for investigators to world – using technology that allows for governments that seek to punish determine the source of the illegal whistleblowers to submit material media for exposing evidence of abuses,” disclosures. to a media outlet anonymously and PoKempner said. “The US government confidentially. should be especially careful not to “During the conspiracy, Manning stretch concepts like ‘conspiracy’ and Assange engaged in real-time On April 5 2010 WikiLeaks revealed in ways that could criminalize discussions regarding Manning’s US military gunsight video showing US newsgathering globally and make it transmission of classified records to military helicopters killing two Reuters harder to expose critical information, Assange. The discussions also reflect war correspondents, Saeed Chmagh and including about human rights abuses.”163 Assange actively encouraging Manning Namir Noor-Eldeen, in Iraq on July 12 to provide more information... 2007. On April 14 2019 the International Federation of Journalists’ Executive “Assange is charged with conspiracy The publication of US diplomatic cables Committee resolved: “The IFJ Executive to commit computer intrusion and is in November-December 2010 was done Committee supports our Australian presumed innocent unless and until with the full collaboration of numerous affiliate MEAA in its opposition proven guilty beyond a reasonable media outlets in several countries to US moves for the extradition of doubt. He faces a maximum penalty including the Sydney Morning Herald Julian Assange. Any extradition and of five years in prison if convicted. and The Age in Australia, The Guardian prosecution by US authorities would Actual sentences for federal crimes in the United Kingdom, The New York be a clear attack on the principles of are typically less than the maximum Times in the US, El Pais in Spain, Le press freedom. We call on the UK and penalties. A federal district court judge Monde in France and Der Spiegel in Australian Governments to oppose any will determine any sentence after Germany. None of these media outlets US extradition application.”

2019 PRESS FREEDOM REPORT | 33 THE PUBLIC’S RIGHT TO KNOW THE WHISTLEBLOWER DILEMMA BY ANNA LANE AND EMILY HOWIE

ournalists have always relied dealing with government information, on whistleblowers to report whilst at the same time massively stories that expose corruption increasing the government’s ability to and misconduct behind the monitor communications. closed doors, often within our Jgovernment-run institutions. Added to this, instead of being praised for exposing corruption or misconduct, However in the era of overwhelming there is a worrying tendency to shoot government secrecy and mass the messenger. surveillance, whistleblowers are paying higher prices than ever for speaking CRACKDOWN ON out while journalists and media WHISTLEBLOWERS organisations navigate a minefield of Two current cases illustrate the dangers new laws that criminalise more and for whistleblowers even where the more types of speech and publication. wrongdoing they expose would be unconscionable to many Australians. Urgent reforms to disclosure laws are needed to protect the important role of In 2004, Australia’s international whistleblowers and freedom of the press intelligence authority, ASIS, bugged East in our democracy. Timor’s cabinet room and ministerial offices in order to obtain an unfair THE IMPORTANCE OF advantage in sensitive negotiations WHISTLEBLOWERS TO over an oil and gas treaty.170 Despite AUSTRALIAN DEMOCRACY international law putting the oil and been devastating. He has had his home Whistleblowers are a cornerstone of gas reserves almost entirely within East raided, he lost his job and he now faces the fight against corruption and are Timor’s boundaries, the negotiations charges for 66 offences.174 key to ensuring that governments, resulted in Australia sharing in oil and companies, and public services gas reserves in the Timor Sea worth over The punitive approach to are held accountable. In Australia, $40 billion.171 The deal greatly benefited whistleblowing is particularly whistleblowers have exposed the Australian mining giant Woodside pronounced in the immigration space, false pretences on which we’ve Petroleum. Later, the then Foreign where the Government has come down gone to war,164 police misconduct,165 Minister accepted hard on media outlets and workers in corruption,166 dangerously inadequate a lucrative consultancy position with immigration detention centres. Workers clean-up of nuclear waste,167 the Woodside. from charity Save the Children were medical malpractice of surgeons,168 and investigated by the Australian Federal cruel treatment of asylum seekers in Witness K was the Australian spy who Police after alleging that children held immigration detention.169 installed the listening devices. Witness in the Australian-run detention centre K and his lawyer, Bernard Collaery, are on Nauru were subject to sexual assault Whistleblowers are often the now facing criminal charges for their role and abuse. The then Immigration confidential sources that journalists in exposing Australia’s secret mission to Minister put further fuel use in their important democratic work spy on the East Timorese government. on the fire, alleging the bad faith on the shining a light on wrongdoing behind part of those workers, claiming that the closed doors and a vital element of a More recently, former ATO employee allegations “may have been fabricated properly functioning free press. Richard Boyle blew the whistle on the as part of an orchestrated campaign, ATO’s reckless debt collection practices involving service provider staff”.175 However the landscape in which that put low income people at risk. He is journalists and whistleblowers now facing 161 years imprisonment.172 The has referred operate is changing fast and speaking On Four Corners, Boyle revealed that the a range of media outlets reporting on out increasingly carries huge risks, ATO was seizing money from the bank its asylum seeker policies to the AFP in including jail time. accounts of taxpayers, regardless of an attempt to uncover their sources and their personal circumstances.173 Boyle’s to investigate and potentially prosecute A raft of new national security laws revelations led to crucial changes inside the whistleblowers involved.176 and mass surveillance capabilities ATO as to how it treats small businesses has created an environment that and vulnerable taxpayers. However, the The Government’s crackdown on criminalises more and different types of personal consequences for Boyle have whistleblowers is starkly contrasted

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The Australian Government has referred a range of media outlets reporting on its asylum seeker policies to the AFP. | Angela Wylie Fairfax Photos

with its apparent willingness to leak prison time both whistleblowers and the investigate government or international information to serve its own purposes. journalists who report their stories. relations. Before it was passed, three In 2017, Human Services Minister, Alan independent UN human rights experts Tudge, released the personal details of Criminalising dealing with condemned it for violating freedom a blogger who wrote an opinion piece information of expression, stating that they were criticising Centrelink’s automated debt Australia has hundreds of secrecy laws “gravely concerned that the Bill would recovery system.177 that restrict access to government impose draconian criminal penalties on information, including laws that expression and access to information Just last month, a classified ASIO criminalise disclosure of government that is central to public debate and briefing on asylum seekers was leaked information. accountability in a democratic society.”179 to, and published by, News Corporation in the midst of the Medevac Bill debate. Last year, the National Security There is a real risk the espionage laws The use of classified ASIO information Legislation Amendment (Espionage and will have a chilling effect on advocacy to support a political attack was widely Foreign Interference) Act 2018 (Cth) and unnecessarily deter reporting by condemned and the Department of (the Espionage Act) added a new and journalists and news organisations who Home Affairs referred the matter to the very worrying espionage offence into will rightly be worried about falling foul AFP for investigation.178 the Criminal Code. Under that law, of the law. put very simply, it is now an offence STATE OF THE LAW to “deal with” any information that In 2013, the Guardian and the In this difficult environment for “relates to”, is “connected with” or is “of Australian Broadcasting Corporation journalists and whistleblowers, in interest or importance to” Australia’s (ABC) were the first to publish the the last few years the parliament has national security or political or economic news that Australia had carried out passed new laws criminalising speech relations with a foreign country. a surveillance operation targeting on national security issues and giving the then Indonesian President Susilo massively increased surveillance powers The maximum penalties for these Bambang Yudhoyono and his wife to law enforcement. offences are extraordinarily high — life Kristiani Herawati. The reporting was imprisonment where the act is intentional based on the Edward Snowden leaks.180 The incentives are all wrong. Instead or 25 years if the act is reckless. of encouraging the exposure of If a similar story were to arise again, wrongdoing, together, these new laws In effect, these offences place journalists, news organisations and only further deter whistleblowers from onerous restrictions on journalists, sources will need to consider whether coming forward and threaten with particularly those who report on or disclosure and publication of that

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information could constitute espionage. the breach whatsoever.183 that balances the right to know with Would publication of the information be In practice, an enforcement agency the public interest in security of “reckless” as to prejudicing Australia’s doesn’t need to access a journalist’s government information. economic or political relations with metadata in order to uncover the Indonesia? source for a story. The agency can Instead it sets up a slow internal simply access the data of people in the disclosure process that may take months If the Snowden leak happened today, government department or agency from to play out before a disclosure can be the journalists, editors and the brave where the leak is coming and see who made publicly. The Act seems to allow whistleblowers involved would contacted the journalist. a Minister, the Speaker of the House of potentially risk up to 25 years to life Representatives or the President of the imprisonment. Authorisation for this search is provided Senate to effectively prevent external or by the same agency that seeks the public disclosures being made under the Mass surveillance information, and can be provided so protection of the Act. As more and more laws criminalise long as “it is reasonably necessary for speech on matters of public interest, the enforcement of the criminal law, a A would-be whistleblower is deprived of the Government has also given law law imposing a pecuniary penalty, or the the protection of the Act where any of enforcement agencies new mass protection of the public revenue”.184 these office-holders is “taking action” in surveillance powers allowing them response to an internal disclosure. to track the confidential sources of Another law introduced last year, journalists. the Telecommunications and Other Urgent disclosures can only be made Legislation Amendment (Assistance and under the emergency disclosure Australian metadata retention Access) Act 2018 (Cth) (TOLA Act), provisions. Yet the emergency laws passed in 2015 require introduced unbelievably broad and disclosure provisions only apply to telecommunications companies to intrusive new powers under which disclosures that relate to “substantial retain customers’ metadata for a period designated communications providers and imminent danger to the health of two years with a stated objective of can be compelled to assist government or safety of one or more persons or to providing law enforcement agencies agencies, including by decrypting the environment” and it would be for with “an irrefutable method of tracing information that is otherwise the individual to assess whether their all telecommunications from end to unintelligible.185 disclosure falls within those provisions end” and enabling them to “prove that — and if they’re wrong they face jail. two or more people communicated at a Requests for technical assistance particular time”.181 can be made in in a broad range of The PIDA badly needs to be circumstances, for example so long as strengthened to clarify the emergency Respected Canberra press gallery the requesting authority is enforcing disclosure provisions so that disclosures journalist Laurie Oakes called the a law punishable by minimum three can be made in the public interest in metadata threat to journalists and their years imprisonment or is safeguarding a timely way. It should also expressly sources “the great press freedom issue national security.186 protect whistleblowers that reveal of the internet age”.182 violations of human rights, or that Whereas metadata laws allow law would promote accountability for such The retention of metadata enables enforcement to see who journalists are violations. governments to trace communications speaking with, the TOLA Act could allow between a whistleblower and agencies to also access the content of Finally, an independent mechanism a journalist, jeopardising the those communications. should be empowered to oversee the confidentiality of the source and internal disclosure procedures and providing a basis for prosecuting The Australian Human Rights disclosures regarding intelligence breaches of secrecy laws, like the Commission states that “the information. espionage law. effect of the TOLA Act is to permit inappropriately intrusive, covert and Journalists play a critical role in the free Journalists’ metadata is meant to be coercive powers, without effective press and the maintenance of a healthy more protected by the requirement safeguards to adequately protect the democracy. Their sources are required that law enforcement agencies obtain a human rights of law enforcement to take greater and greater risks in order Journalist Information Warrant under targets and innocent third parties.” to expose the truth. Division 4C of the Telecommunications (Interception and Access) Act 1979. But in These laws were designed to protect the There is a real risk that Australia’s practice, the secret application process community from terrorists, organised secrecy laws and law enforcement for warrants means that the journalist crime and child sex offenders. But agencies’ massively increased and any news organisation concerned without proper safeguards, there is surveillance powers will have a will never know that a warrant has nothing to stop law enforcement chilling effect on public interest been granted, nor will they be given agencies from using these laws to muzzle journalism that could damage our an opportunity to be heard. At least journalists and expose their sources. democracy. We need to guard against two Journalist Information Warrants the expansion of secrecy laws and mass have been granted since they were LAW REFORM TO PROTECT surveillance powers and urgently reform introduced. WHISTLEBLOWERS whistleblower laws to ensure that truth The Public Interest Disclosure Act 2013 can come to light in the public interest. In fact, the retention of data itself (Cth) (PIDA) is Australia’s whistleblower creates the possibility for unauthorised protection law. Whilst it is a step in Anna Lane is a secondee lawyer and access to journalists’ metadata. In 2017 the right direction, it leaves too many Emily Howie is the director of legal the AFP illegally accessed the metadata whistleblowers unprotected. advocacy with the Human Rights Law of a journalist, with no repercussions for The PIDA should be an instrument Centre

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Louie Douvis Fairfax

DEFAMATION

n February 22 2019 a decision members have identified Australia’s trailing me; plainclothes thugs stationed the Federal Court, in a current defamation laws as one of in front of the homes of people I planned defamation action brought by the biggest barriers to their ability to to interview; and of course, the threat of Australian businessman Chau publish stories in the public interest. police detention… Chak Wing against the former OFairfax newspapers, demonstrated “Media outlets and their employees are Then I moved to Australia. To my surprise, the urgent need for an overhaul of tied up for months or years on costly writing about China from Melbourne Australia’s outdated defamation laws: legal proceedings. The damages being proved no simpler. But there, I was the defence of qualified privilege was won threaten the viability of media hobbled by different forces, namely rejected by the court. businesses. Plaintiffs can be awarded Australia’s oppressive and notoriously vast sums of money without ever complex defamation laws. The challenges Chau was awarded $225,000 in damages, demonstrating they have a reputation, of such reporting were underlined recently plus $55,000 in interest. The figure is let alone one that has been substantially by an Australian federal court, which at the lower end of the scale compared harmed. The old regime did not awarded nearly $USD200,000 (to a with recent defamation payouts, anticipate the nature of modern digital Chinese-Australian businessman, Chau including Rebel Wilson’s $600,000 journalism/publishing nor the massive Chak Wing, after finding that a 2015 win, and is within the statutory cap disruption that has taken place in the Sydney Morning Herald article about him of $389,500 on general damages media industry,” Strom said.188 was defamatory. for non-economic loss. Nine, as the new publisher of the former Fairfax MEAA chief executive Paul Murphy Mr. Chau, a billionaire property newspapers, is appealing the decision. added: “The regime needs to be developer, was born in China, immigrated 187 updated, particularly in relation to to Australia decades ago and is an digital publishing, to bring it in line Australian citizen. The judge ruled that MEAA Media federal president Marcus with international best practice and the article, which alleged that Mr. Chau, Strom said: “MEAA members believe remove areas where the uniform laws who has been a major political donor in that this decision is the latest in several have not proved successful or where Australia, was involved in bribing a United cases involving defamation actions it is inconsistent or does not work as Nations official, used language that was against experienced, responsible intended. Also, criminal defamation “imprecise, ambiguous and loose, but also journalists reporting on matters the must be repealed and removed from the sensational and derisory”. public has a right to know about. statutes.”189 Journalists must be able to fulfil their The judgment, against one of the country’s duty to the communities they serve. The In the wake of the Chau Chak Wing biggest media companies, underlines defamation system is stacked against decision, the New York Times wrote how badly broken Australian defamation Australian journalists. It makes their job a story: “How Australia became the laws are. These laws are impeding of shining a light into public interest defamation capital of the world.”190 journalism on matters of vital national matters all the more difficult,” he said. In the article, senior lecturer with the interest, including China’s growing and ’s Centre for controversial influence, and they have Strom added that defamation actions Advancing Journalism, and a former made Australia the defamation capital of have a chilling effect on legitimate NPR and BBC correspondent based in the world. public interest journalism. “The system Beijing, Louisa Lim wrote: has become unworkable. In fact, our The case is extremely complex, but current laws inhibit the public’s right In the decade I spent reporting from one aspect of it underlines the law’s to know and rather than guaranteeing China, the most immediate obstacles to inconsistency. fairness, Australia’s defamation laws journalism were often physical. They took are being used as a weapon to threaten many forms: barricades blocking access to Some of the most serious allegations and attack legitimate reporting. MEAA certain places; men in military buzz cuts against Mr. Chau were repeated in the

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Australian Parliament by , immense threat to media businesses, to the Model Defamation Provisions a Member of Parliament. His comments and to press freedom itself. for Council of Attorneys-General were reported in the media, under the consideration and endorsement.” cover of parliamentary privilege, which There is a dire need for reform of protects lawmakers and the journalists Australia’s uniform national defamation The Defamation Working Party reporting on them from being sued for legislation that allows people to be paid would consider the findings and defamation… tens of thousands of dollars damages recommendations of the statutory for hurt feelings without ever having to review of the Defamation Act 2005 The judge also rejected arguments that demonstrate they have a reputation, let (NSW), with a view to developing any the article was in the public interest. This alone one that has been damaged. required amendments to the Model “qualified privilege” defence has never Defamation Provisions for Council of been successfully used in a case regarding The immense cost burden not only Attorneys-General consideration and the media, according to a leading has a dire economic effect on media endorsement.196 The Model Defamation defamation law expert. 191 organisations already struggling with Provisions that were originally drafted profitability in the wake of digital in November 2004 by the former The judge found that the conduct of disruption but there is also a considerable Standing Committee of Attorneys- Fairfax Media, the owner of The Sydney “chilling effect” on public interest General. These provisions were used as Morning Herald at the time, and the journalism that intimidates journalists the legislative template for the creation journalist… was unreasonable.192 and media organisations from reporting of the uniform national defamation legitimate news stories in the public regime that became operational from Lim went on to say: interest and applying scrutiny to the rich January 1 2006. and powerful because they fear their The current system is unworkable. journalism may result in costly, lengthy In mid-November 2018, Australia’s Australia’s unique legal situation arises litigation. Right To Know media industry out of its lack of a Bill of Rights or any lobbying group (of which MEAA is a explicit constitutional guarantee of When the law can be used to muzzle the member) wrote to the NSW Attorney- freedom of speech. media in such a way, both democracy and General with a formal letter setting press freedom have been suppressed. out recommendations for changes to Against this backdrop, Australia’s defamation law. The recommendations defamation law tends to privilege the right The uniform national defamation law were formulated by ARTK with input to reputation over freedom of expression. regime commenced operation in January from in-house counsel at News Corp Defending an action is often far costlier 2006 by agreement among the states at and Fairfax. than settling, making the law especially the Council of Australian Governments punitive for media companies. (COAG). Only the states are signatories On February 26 2019 the Defamation to this COAG agreement, the federal Working Party released a 43- A handful of high-profile defamation cases government is not a signatory. Any page discussion paper for public can effectively serve as a brake on free changes to the law must be agreed by all consideration.197 The paper also includes speech… As a result, the Australian public of the states. some enlightening statistics (quoting the is less informed and less able to monitor Centre for Media Transition, University of its own institutions. National security The regime does not have a review Technology Sydney 2018 report: Trends in is also at risk, especially since these clause. However, in 2011, after five years Digital Defamation: Defendants, Plaintiffs, defamation laws could be weaponised of operation the NSW Department of Platforms198) which reviewed defamation by authoritarian states, wielding the Justice undertook a review of its own actions and decisions heard in all states heightened threat of lawsuits as a cudgel Defamation Act. Seven years went by and territories over the five years to 2017 to silence reporting about their activities. before that review was finally tabled in (with a comparison to 2007): the NSW parliament on June 7 2018. Justice is supposed to be blind, but this • NSW was the preferred forum for legal battlefield favours those with financial Meanwhile, at the end of 2015, the defamation actions and more matters means, impoverishing principles like meeting of Australia’s attorneys-general reached a substantive decision in freedom of the press. The ultimate damage that together make up COAG’s then Law NSW than in all other jurisdictions will be to Australia’s democracy.193 Crime and Community Safety Council combined (95 cases for NSW, (now renamed the Council of Attorneys- compared with 94 cases in all other There is a remedy in development. General) once again took up the issue jurisdictions). Finally, after 13 years of operation, of a uniform defamation law review and • As well as the 189 cases with Australia’s uniform national defamation the need for update “below the line”. substantive decisions located through regime is undergoing a much needed searches, there were 609 related review and revamp. The review came The NSW Government was still to finish decisions (for example, separate after many years of discussion at the its 2011 review — but, despite the delay, rulings on evidence). There were Council of Attorneys-General, spurred NSW was to be entrusted with being also 322 other matters in the system, on in the wake of the Senate Select the template for a broader discussion including appeals from earlier Committee report into the Future of among all the jurisdictions so that the decisions and preliminary decisions on Public Interest Journalism.194 uniform defamation legislation could be new matters. The [NSW Act review’s] updated. report acknowledged a complete In its submission to the Committee’s picture of legal action on defamation inquiry,195 MEAA said defamation COAG reacted swiftly. The day after would include other matters that were actions require media companies to NSW tabled the review of its own Act, the subject of summary dismissals “lawyer up” at enormous expense on June 8 2018, COAG agreed to the and the many matters settled before a with the potential for costly damages establishment of the NSW Defamation claim is filed in court. and costs to be awarded against them. Working Party “with a view to • Of the 189 cases: 51.3 percent were Defamation has evolved into an developing any required amendments digital cases, only 21 percent of

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Rebel Wilson departs the after her appeal bid failed Andrew Ellinghausen, Fairfax Photos

the plaintiffs in judgments could • 2017 in Victoria $4.56 million of the loss of a chance of a new screen be considered public figures, and (Western Australia also recorded an role in the period following the release only 25.9 percent of the defendant outcome of $1,849,549 plus interest of of Pitch Perfect 2. Further and perhaps “publishers” were media companies. $773,866).199 most critically, Dixon J assessed general • Overall, about a third of plaintiffs were damages, including aggravated damages, successful. The 2017 Victorian damages amount was at $650,000. In doing so, Dixon J was • Of the 87 awards of damages, 38 were in the case of Wilson v Bauer Media with prepared to lift the statutory cap of for $100,000 or more. the court’s findings handed down on June $389,500 that ordinarily applies for non- • The number of defamation cases — 15 2017. It actually totalled $4.75 million, economic loss… that is, matters for which there was because it was made up of $3.9 million for a substantive decision in that year — economic loss, $650,00 for non-economic The seminal consequences of this decision was almost the same in 2017 as it was loss and $180,000 in interest. Wilson is the apparent risk that journalists and in 2007 (30 compared to 29 cases). The initially sought $7 million in compensation media publishers will be conscious of the number of decisions was the same: 131 over the eight articles, which she earlier risks of such a high windfall against them in each year. described in court as a “malicious, before preparing and publishing vital deliberate take-down” of her.200 pieces of journalism. The Centre’s report also found: • There were 16 cases involving As noted by defamation lawyers Peter A decision that may serve to stifle free Facebook posts, 20 involving emails, Bartlett, Dean Levitan and speech and unsettle the integrity of four involving tweets and two Rosenthal in the 2018 MEAA press journalism is a decision worth seriously involving text messages. freedom report:201 questioning. • There were 37 cases involving websites not affiliated with media [Actor Rebel]Wilson brought claims for Judges like to talk about the scales of organisations, Facebook or Twitter; loss of earnings in the 18 month period justice. Be in no doubt, the scales of justice • There were three cases (all relating to from May 2015 to December 2016, are tilted in favour of the plaintiff. search results) in which Google was resulting in, what she determined, was a the defendant. gross loss of $6.77 million. Subsequently, a year after the first finding an appeals court slashed the Using the Centre’s data, it is also Ultimately, the jury of six established defamation payout to $600,000. On June striking to see how the amount of that each of the defendant’s publications 14 2018, the Australian Financial Review damages has blown out (noting that the conveyed defamatory imputations in the reported the court: damages may be reduced on appeal). terms alleged by the plaintiff and they • 2013 the highest amount awarded was rejected the defences of justification, • set aside the entire amount awarded to $300,000 in an action in NSW. triviality and qualified privilege raised Wilson for economic loss, saying trial • 2014 in NSW: $350,000. by the defendants. Dixon J concluded judge Justice John Dixon had wrongly • 2015 in Queensland: $775,000. that special damages amounted to drawn inferences about the “grapevine • 2016 in NSW: $480,000. approximately $3.9 million in the form effect” of the articles…

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• The sum for economic loss was wiped have a cause of action for defamation. • provide for indemnity costs to be out. The court criticised Justice Dixon Clause 9 provides that a corporation awarded in a defendant’s favour where for accepting that Ms Wilson lost the has no cause of action unless it is an the plaintiff issues proceedings before opportunity to be cast in Hollywood movies excluded corporation at the time of the the expiration of any period of time at basic remuneration of $5 million. publication, being a corporation which is in which an offer to make amends not a public body and: may be made, in the event the court • “The judge relied upon evidence of Ms • (a) whose objects for formation do not subsequently finds that an offer of Wilson,” it said, “and upon evidence of include obtaining financial gain for its amends made to the plaintiff after her principal United States agent and members or corporators; or proceedings were commenced was another independent Hollywood agent as • (b) which is not related to another reasonable? to what they expected, hoped and assumed corporation, and employs fewer than 10 • Should clause 21 (election for would have occurred after Ms Wilson’s people. defamation proceedings to be tried success with Pitch Perfect 2. He relied also by jury) be amended to clarify that upon his assessment of the trajectory of Public bodies, such as local government the court may dispense with a jury on Ms Wilson’s career… it followed that the bodies or other government or public application by the opposing party, or judge’s award of damages for economic authorities established by statute, cannot on its own motion, where the court loss had to be set aside.” sue for defamation. considers that to do so would be in the interests of justice (which may include The court reassessed her damages for The paper then asks: “Should the Model case management considerations)? non-economic loss, including aggravated Defamation Provisions be amended • Should the Federal Court of Australia compensatory damages, at $600,000 — to broaden or to narrow the right of Act 1976 (Cth) be amended to provide $50,000 less than the original judgment. It corporations to sue for defamation?”205 for jury trials in the Federal Court in said Bauer had proved there were faults in For the record, MEAA believes defamation actions unless that court the way the case had been conducted and corporations should not be able to sue dispenses with a jury for the reasons Justice Dixon’s reasoning on “aggravated for defamation — in any circumstances. set out in clause 21(3) of the Model circumstances”. Bauer also argued he Defamation Provisions — depending also should have stuck to the $389,500 The discussion paper then goes on on the answer to question 7 — on an statutory cap that media companies have to ask additional questions about the application by the opposing party or previously relied on, but the court rejected original Model Defamation Provisions: on its own motion? that challenge.202 • Should clause 26 (defence of contextual • Do the policy objectives of the Model truth) be amended to be closer to Wilson attempted to appeal her case Defamation Provisions remain valid? section 16 (defence of contextual truth) before the High Court of Australia (a) Should the Model Defamation of the (now repealed) Defamation but the court dismissed the case on Provisions be amended to include a Act 1974 (NSW), to ensure the clause November 16 2018.203 ‘single publication rule’? applies as intended? (b) If the single publication rule is (a) Should the Model Defamation Returning to the Working Party’s supported: Provisions be amended to provide discussion paper, it goes on to say: • should the time limit that operates in greater protection to peer reviewed “The Model Defamation Provisions relation to the first publication of the statements published in an academic or attempt to strike a balance between matter be the same as the limitation scientific journal, and to fair reports of protecting individuals from reputational period for all defamation claims? proceedings at a ? damage from defamatory publications, • should the rule apply to online (b) If so, what is the preferred while also ensuring that freedom of publications only? approach to amendments to achieve expression is not unduly curtailed, and • should the rule should operate only in this aim – for example, should that information in the public interest is relation to the same publisher, similar provisions similar to those in the released. National consistency is also a to section 8 (single publication rule) of Defamation Act 2013 (UK) be key policy objective and, as noted above, the Defamation Act 2013 (UK)? adopted? one that continues to be important.”204 • Should a jury be required to return (a) Should the ‘reasonableness test’ a verdict on all other matters before in clause 30 of the Model Defamation The discussion paper sets out a determining whether an offer to make Provisions (defence of qualified series of questions about the Model amends defence is established, having privileged for provision of certain Defamation Provisions with a view to regard to issues of fairness and trial information) be amended? gathering public opinion on whether efficiency? (b) Should the existing threshold to the provisions should be amended. • Should amendments be made to the establish the defence be lowered? An example of some of the questions offer to make amends provisions in the (c) Should the UK approach to the raised in the discussion paper is the Model Defamation Provisions to: defence be adopted in Australia? highly contentious issue of whether • require that a concerns notice specify (d) Should the defence clarify, in corporations should be allowed to where the matter in question was proceedings where a jury has been sue for defamation. The February published? empanelled, what, if any, aspects 2019 discussion paper outlines the • clarify that clause 15(1)(d) (an offer to of the defence of statutory qualified background: make amends must include an offer to privilege are to be determined by the Division 2 of the Model Defamation publish a reasonable correction) does jury? Provisions sets out the parties that not require an apology? • Should the statutory defence of honest THE SYSTEM HAS BECOME UNWORKABLE AND THE LAWS ARE HOPELESSLY OUT OF DATE

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opinion be amended in relation to • Are there any other issues relating particularly in relation to digital contextual material relating to the to defamation law that should be publishing), to bring it in line with proper basis of the opinion, in particular, considered? international best practice and to better articulate if and how that remove areas where the uniform laws defence applies to digital publications? Public responses to the discussion have not proved successful or where • Should clause 31(4)(b) of the Model paper will be considered from April it is inconsistent or does not work as Defamation Provisions (employer’s 30 2019. By September 2019 a intended. Also, criminal defamation defence of honest opinion in context principle agreement containing Model must be repealed and removed from of publication by employee or agent is Defamation Provisions will be put the statutes. defeated if defendant did not believe to the Council of Attorneys General. opinion was honestly held by the The model provisions will be exposed MEAA added that recent defamation employee or agent at time of publication) to public consultation in December cases (Rebel Wilson, Chris Gayle, Chau be amended to reduce potential for 2019. The approved model law is to be Chak Wing) show that court decisions journalists to be sued personally or enacted from June 2020. can be at odds with what the public jointly with their employers? and MEAA members expect from • Should a ‘serious harm’ or other MEAA’s issued a brief explanatory defamation proceedings. threshold test be introduced into the document setting out what it wants Model Defamation Provisions, similar to see from defamation reform. It MEAA and ARTK have suggested the to the test in section 1 (serious harm) said: “Australia’s defamation laws are review take account of international of the Defamation Act 2013 (UK)? hopelessly out of date. Since January 1 best practice, including recent • If a serious harm test is supported: 2006, Australia has had a substantially amendments adopted in the UK, • should proportionality and other uniform defamation regime operating to update the law and ensure case management considerations be in every jurisdiction by agreement consistent application across all incorporated into the serious harm test? between the state, territory and publishing mediums, particularly • should the defence of triviality be Commonwealth governments. digital publishing, which has grown retained or abolished if a serious harm dramatically since the defamation test is introduced? “But the system has become regime was created in 2006. (a) Does the innocent dissemination unworkable. In fact, our current laws defence require amendment to better inhibit the public’s right to know and As such, the changes MEAA is seeking reflect the operation of Internet rather than guaranteeing fairness, include: Service Providers, Internet Content Australia’s defamation laws are being • Introduce a single publication rule Hosts, social media, search engines, used as a weapon to threaten and (similar to the UK Defamation Act and other digital content aggregators attack legitimate reporting. MEAA 2013) that applies to first publication as publishers? members have identified Australia’s of the material regardless of the (b)Are existing protections for digital current defamation laws as one of medium; publishers sufficient? the biggest barriers to their ability to • Introduce a serious harm threshold (c) Would a specific ‘safe harbour’ publish stories in the public interest. test; provision be beneficial and consistent • Provide for presumption in favour of with the overall objectives of the Model “The laws are having a chilling effect trial by jury; Defamation Provisions? on press freedom. Media outlets and • Replace the public interest defence (d) Are clear ‘takedown’ procedures their employees are tied up for months with a version similar to the UK Act; for digital publishers necessary, and, if or years on costly legal proceedings • Restore a defence of contextual so, how should any such provisions be while awaiting a legal outcome. The truth (similar to section 16 of the old expressed? damages being won threaten the Defamation Act 1974); • Should clause 35 be amended to clarify viability of media businesses. Plaintiffs • Clarify that a “correction” is the whether it fixes the top end of a range can be awarded vast sums of money correction of any false statement and of damages that may be awarded, or without ever demonstrating they have a does not require an apology; whether it operates as a cut-off? reputation, let alone one that has been • Clarify the maximum damages (b) Should clause 35(2) be amended substantially harmed. The old regime amount, fixing the upper limit to clarify whether or not the cap for did not anticipate the nature of modern of a range of damages and the noneconomic damages is applicable digital journalism/publishing nor the maximum to apply to only certain once the court is satisfied that massive disruption that has taken place proceedings; aggravated damages are appropriate? in the media industry.” • Amend the law so that the plaintiff (a) Should the interaction between can only bring one set of proceedings; Model Defamation Provisions clauses When MEAA conducted its first press • Repeal all criminal penalties for 35 (damages for non-economic loss freedom survey (of 1292 people) in May defamation; limited) and 23 (leave required for 2018, it found: • Companies should not be able to sue further proceedings in relation to in any circumstances; publication of same defamatory • Seventy-two per cent of respondents • Acknowledge journalist privilege matter) be clarified? said Australia’s defamation laws make by extending shield laws to ensure (b) Is further legislative guidance reporting more difficult. confidential source protection; required on the circumstances in • While only 6.3 per cent of respondents • Plaintiffs should be prevented from which the consolidation of separate said they had received a defamation suing journalists individually in defamation proceedings will or will not writ in the past two years, almost circumstances where the journalist’s be appropriate? a quarter (24.4 per cent) said they employer/publisher would be a co- (c) Should the statutory cap on had had a news story spiked within defendant; damages contained in Model the past 12 months because of fears • Foreigners looking to sue in Australia Defamation Provisions clause 35 apply of defamation action by a person must show a real connection to the to each cause of action rather than mentioned in the story. jurisdiction where they have brought each ‘defamation proceedings’? • The regime needs to be updated, the claim.

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Australian Federal Police Commissioner Andrew Colvin Andrew Ellinghausen, Fairfax Photos

NATIONAL SECURITY JOURNALIST INFORMATION WARRANTS n Thursday April 13, 2017 Journalist Information Warrant source. If this warrant is granted, it telecommunications and allows at least 21 government remains secret and the journalist is internet service providers agencies to access a journalist’s unable to challenge it. Further, the were required to collect telecommunications data or their warrant can last up to six months and and retain user data for two employer’s telecommunications data grants access to data up to two years Oyears thanks to the Telecommunications for the express purpose of identifying old. (Interception and Access) Amendment a journalist’s confidential source. (Data Retention) Act 2015 which The warrant could be used to identify MEAA and media organisations have was passed in the parliament with and pursue a journalist’s source repeatedly warned politicians of bipartisan support. The metadata (without the journalist’s knowledge); the threat to press freedom in these retention regime is a particular concern including whistleblowers who seek to laws. At the last minute, parliament for journalists who are ethically obliged expose instances of fraud, dishonesty, created a so-called “safeguard” : the to protect the identity of confidential corruption and threats to public health Public Interest Advocate. However, sources. Clause 3 of MEAA’s Journalist and safety. the scheme is no safeguard at all; Code of Ethics requires confidences to it is merely cosmetic dressing that be respected in all circumstances.206 The warrant will be granted where demonstrates a failure to understand the Minister believes that the public or deal with the press freedom threat The new regime secretly circumvents interest in issuing the warrant contained in the legislation: these ethical obligations. Under outweighs the public interest in the system, the granting of a protecting the confidentiality of the The Journalist Information Warrant

42 | 2019 PRESS FREEDOM REPORT AN AFP OFFICER ACCESSED A JOURNALIST'S DATA WITHOUT A WARRANT scheme was introduced without or refused or how many of their news responsibilities when exercising consultation. stories and their confidential sources’ metadata powers; • It operates entirely in secret with identities have been compromised. • The AFP relied heavily on manual the threat of a two-year jail term for checks and corporate knowledge as it reporting the existence of a Journalist Subsequent to the revelation of the did not have in place strong system Information Warrant. access to a journalist’s metadata controls for preventing applications • Public Interest Advocates will be without a warrant, an audit by the that did not meet relevant thresholds appointed by the Prime Minister. Commonwealth Ombudsman found from being progressed; and Advocates will not even represent the that Australian Federal Police did not • Although guidance documents were specific interests of journalists and destroy all copies of phone records it updated prior to the commencement media groups who must protect the obtained unlawfully, without a warrant, of the Journalist Information Warrant confidentiality of sources. for the purpose of identifying the provisions, they were not effective as a • There is no comprehensive reporting journalist’s source.207 control to prevent this breach. or monitoring of how the warrants operate. On February 28 2017 the director- The failure to destroy the accessed • Journalists and media organisations general of ASIO told a Senate Estimates data came down to a lack of technical will never know how much of their hearing that ASIO had been granted “a know-how. The Ombudsman suggested data has been accessed nor how many small number” of Journalist Information that in future cases, the “AFP, when sources and news stories have been Warrants. destroying information, seek assistance compromised. from its technical officers to ensure that On April 28 2017 MEAA issued a the information is destroyed from all The warrants allow the government statement regarding the revelation locations on its systems”. agencies to access: an Australian Federal Police officer • Your account details. has been able to access a journalist’s The ombudsman’s report states that: • Phone: the phone number of the call telecommunications data without “At the time of drafting this report, 190 or SMS; the time and date of those being granted the necessary Journalists authorised officers were delegated to communications; the duration of the Information Warrant.208 issue metadata authorisations. Fifty- calls; your location, and the device four of them could issue metadata and/or mobile tower used to send or The ombudsman contradicted AFP authorisations under a Journalist receive the call or SMS. commissioner Andrew Colvin’s Information Warrant.” • Internet: the time, date, sender and statement in April 2017 that confirmed recipient of your emails; the device a breach had occurred within the The ombudsman recommended: “The used; the duration of your connection; professional standards unit and that the AFP should consider the relevant your IP address; possibly the accessed metadata had been destroyed. training and experience of officers who destination IP address (if your carrier An audit of the AFP’s records carried may temporarily act in higher positions retains that information); your upload out by the ombudsman on May 5 2017 which have been delegated to issue and download volumes; your location. “identified that not all copies of records metadata authorisations. These officers containing the unlawfully accessed data are not subject to mandatory metadata The 21 government agencies include had been destroyed by the AFP”.209 training and would have infrequently, if the anti-corruption bodies that already at all, issued metadata authorisations.” have star-chamber powers, as well as Of particular concern is this statement Border Force, the Australian Securities from the ombudsman’s report: The lack of proper capability, oversight, and Investments Commission and the “With regards to how the breach was management and understanding of the Australian Crime Commission, and state identified, based on our understanding requirements of the law, outlined in and federal law police forces. of the events leading up to the the Ombudsman’s report, is worrying. voluntary disclosure to our Office, After all, the legislation is designed ASIO doesn’t have to front a court or it appears that an external agency for a single purpose: to enable the tribunal; it can apply for a Journalist initially prompted the AFP to review government to go after whistleblowers Information Warrant directly to the the relevant investigation, resulting in after their stories have been told by the attorney-general. consideration of the relevant legislative media. Its aim is to bypass the ethical requirements.”210 For the AFP to need an obligations of journalists by trawling A journalist can never challenge external agency to remind it to comply through their telecommunications a Journalist Information Warrant. with the law is disturbing. data and that of their media employer, Everything about Journalist Information to enable a government agency to Warrants is secret. Even if someone The ombudsman found that there were hunt down, persecute and prosecute a should discover a warrant has been four main contributing factors for the confidential source after a news story issued, reporting its existence will result breach: has been published or broadcast. in two years jail. • At the time of the breach, there was insufficient awareness surrounding The use of legislation in this attack In short, journalists and their media Journalist Information Warrant on press freedom, legislation that employers will never know if a requirements within the Professional was passed by the Parliament with warrant has been sought for their Standards Unit (PRS); bipartisan support, should be deeply telecommunications data and will never • Within PRS, a number of officers did troubling for any advocates of freedom know if a warrant has been granted not appear to fully appreciate their of expression and press freedom.

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The bungling application of the law by issued to the AFP since the first non- limit the date range for results as per the national police force so soon after routine inspection; and the warrant conditions.”214 being enacted is more worrying still. • each authorisation made under an expired or revoked Journalist Because of the secrecy surrounding the MEAA has campaigned strongly against Information Warrant since the first use of the warrants it’s not known how the ability of government agencies non-routine inspection [conducted on much damage may have taken place to access journalists’ and media May 5 2017].”213 where a journalist’s telecommunications companies’ telecommunications data data and their ethical obligation to in order to hunt down and identify The Ombudsman found that the protect confidential sources may have confidential sources. MEAA chief AFP was still not complying with been compromised by the AFP’s failure executive Paul Murphy responded its requirements under the law. “At to adhere “with the conditions of a to the news that the AFP had not the September 2018 inspection, we warrant”. adhered to the need to get a warrant noted two exceptions to adherence before trawling through a journalist’s with the conditions of a warrant but The Ombudsman’s 2019 report also telecommunications data: “Despite all were otherwise satisfied the AFP had noted: “Although the AFP has made of the requirements put in place before appropriately applied the Journalist progress, one suggestion from our a Journalist Information Warrant can be Information Warrant provisions in the October 2017 report has not been granted, the system has failed. instances we inspected.” implemented. Specifically, we had suggested that PRS staff undergo “This is an attack on press freedom. It The Ombudsman’s describes the supplementary induction training demonstrates that there is very little first exception: “The Integrated relating to telecommunications data, understanding of the press freedom Public Number Database (IPND) is a shortly after commencing in the section. concerns that we have been raising with telecommunications industry database We will continue to monitor the AFP’s politicians and law enforcement officials containing all listed and unlisted public compliance with telecommunications for several years now,” he said. telephone numbers and can be searched data legislation through our routine after making an authorisation to access inspections. We will also use those “The use of journalist’s metadata to telecommunications data. During our inspections to assess the AFP’s progress identify confidential sources is an inspection, we identified instances in implementing our remaining attempt to go after whistleblowers and where IPND searches provided data suggestion.” others who reveal government stuff- results beyond the date range specified ups. This latest example shows that an in the warrant conditions… The Ombudsman’s report says: “In over-zealous and cavalier approach to our October 2017 report, we suggested individual’s metadata is undermining “We note the AFP’s proactive approach the AFP implement a supplementary the right to privacy and the right to mitigating privacy intrusion by induction training package that PRS of journalists to work with their drafting warrant conditions. In future (professional standards unit) new-starters confidential sources,” Murphy said.211 we suggest the AFP also ensures must complete prior to commencing with any warrant conditions can be given PRS if the formal induction is likely to be In January 2019 the Commonwealth practical effect before they are finalised. delayed. We suggested this supplementary Ombudsman released another report Following the inspection, the AFP training package cover roles and on the compliance of the Journalist advised that its guidance on obtaining responsibilities for telecommunications Information Warrants provisions.212 The Journalist Information Warrants will be data, and specifically highlight the higher report noted the AFP’s 2017 failures and updated to require officers to consider thresholds for applications relating to the subsequent investigations by the the impact of warrant conditions prior journalists. At our second non-routine Ombudsman into the failure and the to issue. AFP also advised that it has inspection, this suggestion had not been Ombudsman’s recommendations. begun using this issue as an example implemented by the AFP. PRS staff still do in training; highlighting the need to not complete formal telecommunications The latest report states that the ensure restrictions placed on warrants data training until they are formally Ombudsman made a second “non- or authorisations are compatible with inducted into PRS, which may occur many routine inspection” from September 5-8 telecommunication request systems.” months after they commence. 2018. “This inspection was to examine the way the AFP had used the Journalist Of the second exception, the report “Given that we identified training for Information Warrants since the first says: “Under an authorisation for PRS staff as a particular risk in our inspection and assess its progress in telecommunications data, an agency October 2017 report, we are concerned implementing the recommendations can access various types of information this suggestion has not yet been acted and suggestions from our October 2017 from carriers, including subscriber on. report… information. Subscriber information is information held by a carrier relating “Following the inspection, the AFP “During the inspection our Office to those who are subscribed to its proposed to introduce a mandatory considered and assessed: services including details such as the online training program for requesting • all applications for Journalist subscriber’s name and address. During officers in 2019. The aim of this Information Warrants since the first our inspection, we identified three training will be to foster a heightened non-routine inspection; authorisations for access to subscriber awareness of the Journalist Information • all Journalist Information Warrants information where the requests did not Warrant provisions under the Act for BECAUSE OF SECRECY IT'S UNKNOWN HOW MUCH DAMAGE WAS CAUSED

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all requesting officers, including those in PRS. In December 2018 the AFP also updated PRS’s New DECRYPTION Starter Induction Checklist. This new checklist is to be completed n July 14 2017 MEAA issued The Parliamentary Joint Committee when staff commence in PRS and a statement expressing on Intelligence and Security received records their acknowledgement of alarm at a government push nearly 100 submissions to its inquiry general guidance material related to force tech companies to into bill. Virtually all of the submissions to telecommunications data as well “break”, or decrypt, encrypted raised serious concerns about its impact. as specific information about the Ocommunications.217 “The announcement Journalist Information Warrant seems to show scant understanding The MEAA submission dated October provisions… or consideration of how this might 19 2018218 stated that MEAA was gravely be achieved, or any concern for the concerned that the proposed legislation “Our Office notes the AFP’s progress potential consequences,” MEAA said. is neither reasonable nor proportionate. in addressing the issues raised in our The legislation as it stands carries October 2017 report. We will continue MEAA said it was particularly concerned too few safeguards and exceeds the to monitor the AFP’s implementation that on past experience the government threats it seeks to manage. It typifies of the outstanding suggestion and its agencies have little regard the sledgehammer to crack a walnut through our routine inspections, the for press freedom and there is every approach that is now commonplace results of which will be included in likelihood that the powers being sought in Government attempts to bolster our Annual Report to the Minister.” 215 by the government over encrypted national security and community safety. communications will be misused — On April 4 2019, the Parliamentary either to identify a whistleblower or MEAA’s journalist members are Joint Committee on Intelligence pursue a journalist for a story the especially concerned that warrants and Security commenced three government does not like. and orders may be issued in cases statutory reviews on the mandatory where matters of public interest have data retention scheme and MEAA chief executive Paul Murphy been reported through the provision the amendments made by the said: “For more than 15 years now, we of information by confidential sources Telecommunications and Other have seen government introducing anti- and which attract penalties under the Legislation Amendment (Assistance terror laws that erode press freedom, Commonwealth Crimes Act. The breach and Access) Act 2018.216 The review persecute whistleblowers and attack of such a confidence by a journalist will focus on the following aspects of journalists for simply doing their job. offends the Code of Ethics and the legislation: endangers coverage of issues deserving • the continued effectiveness of “Laws that are meant to protect the public scrutiny. the scheme, taking into account community and go after terrorists are changes in the use of technology being used to muzzle the media, cloak “We call upon the Committee to set since the passage of the Bill; the government in secrecy, hunt down the proposed legislation aside so that • the appropriateness of the dataset and identify journalists’ sources, and a proper period of consultation — and retention period; imprison journalists for up to 10 years including with the news media industry • costs, including ongoing costs borne for reporting matters in the public — can occur. At a bare minimum, we by service providers for compliance interest,” he said. seek the incorporation of exemptions with the regime; for persons engaged in journalism • any potential improvements to “As recently as April [2017], the and the media industry to ensure oversight, including in relation to Government failed to bring the that matters of public interest can journalist information warrants; Australian Federal Police to heel when continue to be reported without fear of • any regulations and determinations it revealed that it had illegally accessed government agencies seeking warrants made under the regime; a journalist’s telecommunications data and orders to pursue journalists that • the number of complaints about without a warrant. Even the subsequent shine the light on matters of public the scheme to relevant bodies, investigation by the Commonwealth interest.” including the Commonwealth Ombudsman into how that breach Ombudsman and the Inspector- occurred is a secret under the The MEAA submission focussed on General of Intelligence and Telecommunications (Interception and three issues: Security; Access) Act,” he said. • security requirements in relation Computer Warrants to data stored under the regime, “There is real concern that government Under the proposed legislation, a law including in relation to data stored agencies could once again misuse their enforcement agency may apply for a offshore; powers to go after whistleblowers, to warrant to covertly search electronic • any access by agencies to retained go after journalism. The government devices and access content. The telecommunications data outside must take immediate steps to protect warrants permit the search of electronic the TIA Act framework, such as human rights and press freedom before devices to determine whether it is under the Telecommunications Act it indulges in granting agencies any relevant and covered by the warrant, 1997; and more anti-terror powers. There will which seems to be a process of reverse • developments in international be appalling consequences if extreme logic. We are concerned that the jurisdictions since the passage of powers such as those being sought test for enhanced search warrants of the Bill. by the Prime Minister and Attorney- ‘suspecting on reasonable grounds that General are misused to persecute evidential material is held in a device’ The committee is accepting journalists and their sources. After all, will allow fishing expeditions into the submissions with a deadline of July 1 that’s what happened just three months communications activity of an ever- 2019 and the committee must report ago,” Murphy said. escalating number of citizens, including by April 13 2020. MEAA’s members.

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THE LATE WASHINGTON POST EDITOR, BEN BRADLEE “First, we do consult with the government regularly about sensitive stories and we do withhold stories for national security reasons, far more often than the public might think. The Post has withheld information from more than a dozen stories so far this year for these reasons.

Second, we don’t allow the government — or anyone else — to decide what we should print. That is our job, and doing it responsibly is what a free press is all about. Trouble starts when people try to sweep a lot of garbage under the rug of national security…

The role of a newspaper in a free society is what is at issue here. Governments prefer a press that makes their job easier, a press that allows them to proceed with minimum public accountability, a press that accepts their version of events with minimum questioning, a press that can be led to the greenest pastures of history by and manipulation.

In moments of stress between “Although the Government asserts (TAN) and Technical Capability Notice government and the press — and that a computer access warrant (TCN). These apply to communications these moments have come and does not authorise the addition, providers operating in Australia. gone since Thomas Jefferson — deletion or alteration of data, the the government looks for ways explanatory materials also state that TARs are voluntary and are issued at to control the press, to eliminate such adjustments can be made ‘where agency head (or delegate) level. If the or to minimise the press as an necessary to execute the warrant’,” the request is acted upon by a provider, that obstacle in the implementation of submission said. provider and their agents are granted policy, or the solution of problems. civil immunity. Assistance Orders In these moments, especially, the These can be issued by a judicial The TAN is a compulsory order press must continue its mission officer to require a device owner to requiring a provider to give assistance of publishing information that provide access to the device where it is wherever capable of doing so. TANs are it — and it alone — determines reasonably suspected that ‘evidential issued by security and law enforcement agency heads or their delegate(s). to be in the public interest, in a material’ is held on a device. The penalty for refusing to assist authorities useful, timely and responsible will increase to a maximum of five years’ TCNs are also compulsory orders may manner — serving society, not 226 imprisonment. These measures are not only be issued by the Attorney General. government.” confined to what may be considered The distinction between a TAN and serious risks of harm to community TCN is that the TCN can require a safety, but to all forms of misconduct. communications provider to build a It is inappropriate to compel members capability or functionality to provide of the community to permit access to the assistance sought. A TAN can only personal information without some seek the application of mechanisms that regard for the severity and nature of an already exist. offence. Notices must be for the purpose of Technical Assistance Orders enforcing criminal laws, protecting The legislation seeks the introduction public revenue or safeguarding national of Technical Assistance Requests security. Each exercise must be (TAR), Technical Assistance Notices reasonable and proportionate.

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“MEAA is gravely concerned that not destroy — the integrity of encrypted oversight, and with no consideration judicial approval for the issue of notices communications systems. It seems clear of the need to protect public interest is not required, although we are advised to all outside of law enforcement bodies reporting. Journalists increasingly that the device for which assistance that allowing such trespasses will lead rely on encrypted communications is being sought must be subject of an to widespread breaches of personal to protect the identity of confidential underlying search warrant. We strongly and professional privacy and of course, sources. Offering this protection oppose the ability of departmental lead to journalists being disabled from is vital. It gives whistleblowers the officers and the Attorney General being ensuring that their sources are protected. confidence to come forward with public able to issue requests and notices, interest concerns. In the absence of where only the slimmest of evidential MEAA’s submission concluded: “We call that confidence many important stories tests may be applied,” the submission upon the Committee to set the proposed will never come to light.” said. legislation aside so that a proper period of consultation — including Murphy went on to say: “Instead of “Additionally, the proposed with the news media industry — can listening to the concerns raised by transparency of the new regime is occur. At a bare minimum, we seek the technology experts, lawyers, privacy fundamentally inadequate. Other than incorporation of exemptions for persons advocates and many others, the the remote prospect of a compliance engaged in journalism and the media government is instead seeking to ram audit conducted by the Ombudsman, industry to ensure that matters of public the legislation through Parliament next nowhere is it proposed that detailed interest can continue to be reported week. Everyone accepts the need to give public scrutiny of requests, notices, without fear of government agencies our law enforcement and intelligence orders and warrants will be possible. seeking warrants and orders to pursue agencies adequate powers to keep Citizens must be contented with journalists that shine the light on us safe. But weakening encryption reviewing the annual reports of up to matters of public interest.” is a serious and technically complex twenty-one law enforcement agencies exercise, one that no other government to determine the number of new law On December 2 2018 MEAA followed has done. enforcement instruments applied for up its submission by saying the and issued. Encryption Bill should not be allowed “The risk in ramming through complex to proceed in the parliament in its legislation with undue haste is that “Finally, MEAA must register its current form. 219 “This bill would grant it will actually make us less safe strongest objections to enabling access to the communications data of and trample on the very democratic Commonwealth agencies to disturb — if journalists without any proper judicial freedoms we are seeking to protect.

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There needs to be much more careful familiar to any journalist with a scoop. consideration of the risks this The backdoor mechanism weakens legislation poses.” the overarching system of encryption, creating a loophole that could easily The Bill had its second reading debate be targeted by hackers and online on December 6 2018 and was passed by criminals, a point the tech world widely both houses with some amendments agrees upon. If damaging information considered in the Senate on the last is involved, this can absolutely risk the sitting day for 2018. It received assent safety of journalists. on December 8 but as the parliament rose two days earlier, the Act was Journalists should also be wary referred to the Parliamentary Joint of assuming benevolence on the Committee on Intelligence and Security government’s part in surveillance by the Senate for an inquiry into the efforts, they said. The legislation entire act as well as the government’s contains additional provision of amendments. assistance to foreign governments, which could open up journalists to On February 12 2019, the Committee scrutiny from governments beyond chair Andrew Hastie MP explained to Australia. “It comes down to trust, and the House of Representatives that the another part of that trust question is Senate had called for a review of the with which government… It’s called Act.220 jurisdiction shopping,” Warren told the Press Club.223 The deputy manager of Opposition business Mark Dreyfus subsequently According to the EFA, the legislation is told the House: “On the morning of 6 a further shameful step of encroaching December 2018, the last parliamentary government surveillance. The sitting day of 2018, the government government already had a range of introduced 173 amendments to the existing powers sufficient for security Telecommunications and Other surveillance. “We haven’t heard from Legislation Amendment (Assistance police why the existing powers are and Access) Bill 2018 in response to inadequate, other than hand waving… the Parliamentary Joint Committee they haven’t specifically articulated on Intelligence and Security’s 17 the gaps in the existing legislation recommendations, which had been that prevent major crime [from being delivered only a day earlier in the addressed],” Warren said. committee’s report of 5 December. The government’s amendments did “The striking thing to me, and in not fully implement the committee’s conversations with others… is that recommendations… foreign intelligence organisations ESPIONAGE are not keen on it, because they “We do not suggest that the full understand that creating weaknesses implementation of all of the in the system actually create problems, AND committee’s recommendations would because if it leaks, as they always do, address all of the concerns that have then criminal enterprises, terrorists, been expressed by stakeholders about etcetera will get a hold of it,” Warren FOREIGN the measures that were introduced said. They know that, but they’re at a by the access act. To the contrary, the little bit of a disadvantage because the INFLUENCE reason why Labor insisted that the nature of their work means that it is access act be referred to the committee done in secret, and they try very hard n June 28 2018, just hours for an immediate inquiry is that the to be seen as nonpartisan.”224 before the Parliament rose committee did not have enough time for its winter break, the to properly consider the access bill,” The Parliamentary Joint Committee Senate rushed through two Dreyfus said.221 on Intelligence and Security crucial pieces of legislation. has commenced a review of the OThe Guardian wrote: “The Senate has The digital rights group Electronic Telecommunications and Other passed laws that amount to the most Frontiers Australia (EFA) called Legislation Amendment (Assistance and significant overhaul of Australia’s the enacted legislation a serious Access) Act 2018 and will report by April security and foreign interference laws threat to investigative journalism.222 3 2019. The committee had received 66 in decades — creating new espionage Board member Justin Warren told submissions by February 22 2019. offences, introducing tougher penalties a Melbourne Press Club forum: “It on spies and establishing a register of becomes a question about consent On March 27 2019, Labor committed foreign political agents.”227 and control over who has access to amend Australia’s encryption laws to what information under what and would seek three changes to The Bills, the National Security circumstances.” the encryption regime: prohibit the Legislation Amendment (Espionage and injection of “systemic weakness” into Foreign Interference) Bill 2017 and the EFA warned the legislation could put companies’ systems, strengthen judicial Foreign Influence Transparency Scheme journalists at risk, should sensitive, warrant requirements, and commission Bill 2017 (FITS) were introduced to the and potentially damaging, information an inquiry into the economic effects of Parliament on December 7 2017 and land in their hands — a situation the laws. 225 then went to committee for inquiry

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to further legislate to criminalise journalism. The report still recommends a journalist receive a lengthy jail term for having reported and published or broadcast a legitimate news story. That would make Australia one of the worst countries in the free world for criminalising journalism, and would mean Australia joins the rogues’ gallery of countries that use national security laws to jail journalists such as Turkey, Egypt and China.”

Recommendation 2 of the report still states that the Bill would create an offence of causing “national embarrassment”. Murphy noted “As the late Washington Post editor Ben Bradlee said: “national security powers should not be used to cover up national embarrassment. Journalists must be allowed to scrutinise government in order to inform the community and maintain a healthy, functioning democracy. Laws that curtail the media’s ability to do that, and that impose jail terms for legitimate journalism, are attacks on press freedom and democracy. The Australian media has regularly shown that when it comes to stories about national security, it has been extremely responsible.”

Murphy added that while defences were offered for media organisations’ editorial and administrative support staff as well as legal advisers, there during which time many submissions recommendations for changes to the was little protection afforded to were made. MEAA reported its concerns Bill in its 400-page report. whistleblowers and others who work at length in the 2018 report into the with journalists. state of press freedom, Criminalising MEAA chief executive Paul Murphy Journalism.228 commented: “We said from the outset MEAA also noted that the report, that this was a poorly drafted Bill and in recommendation 41, still sought MEAA, together with Australia’s Right thanks to the detailed submissions of to impose limitations on the right To Know media industry lobbying many organisations, those failings have to freedom of expression. “This is a group, made numerous submissions to been pointed out to the Committee dangerous step that has far-reaching both inquiries. MEAA was particularly and the Parliament. In response, and very dangerous implications for free concerned with the implications of the the recommendations clearly seek speech and press freedom in Australia,” Espionage Bill.229 to implement sensible and proper Murphy said. improvements to the Bill and MEAA Once the inquiries concluded and welcomes those changes.” “This Bill, while it has been improved, subsequently reported, the Bills passed is still flawed and irresponsible. Bad following the acceptance of many However, MEAA remained concerned laws should never be rushed through amendments. that there is still no media exemption Parliament. This report makes 60 recommended by the inquiry, only recommendations but this is still not MEAA welcomed many of the changes to a defence and one that a good Bill. MEAA urges all parties recommendations in the Parliamentary overly relies on the Attorney General of to redraft the Bill and then allow for Joint Committee on Intelligence and the day agreeing to prosecute or not. extensive consultation and feedback Security report into the Espionage from civil society to ensure that the Bill.230 It was clear that the concerns MEAA said: “The failure of the extensive powers being granted to raised by MEAA, media organisations Committee’s report to allow for a media government are responsible, uphold and and many civil society bodies were exemption means that this Bill would protect press freedom, and respect the justified, given the Committee made 60 enable the Australian Parliament public’s right to know.” THERE WAS LITTLE PROTECTION AFFORDED TO WHISTLEBLOWERS

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digital platforms would be made redundant.233 MEAA commented: “Digital media workers are sick of it THE INDUSTRY — they are innovating and attracting new audiences and dollars, and are angry at the lack of protections covering them in their workplace and REDUNDANCIES the lack respect for the work they do. Digital workers are unionising here has been some abeyance in full to its “hard-working staff, to get a seat at the table with their in the mass redundancies who have demonstrated the utmost management; to negotiate decent work at the larger media outlets. dedication to the BuzzFeed , conditions, good pay and to have input Disturbingly, redundancies and properly recognise those efforts about the future of the companies they have taken place at smaller with fair, reasonable and above-award work for. Tdigital workplaces as they transform redundancy payments, in line with from an initial establishment and what their colleagues overseas have “Despite the job cuts announced today, growth phase only to find that received”. digital media is growing — fast. And will advertising revenue is insufficient to keep growing. And digital journalists maintain profitability. As a result, some MEAA noted that many journalists want a say in the direction these digital-only new media businesses that working for digital-only publications companies are going, to share ideas at had earned respect among their media currently miss out on key protections the top levels and build a sustainable peers are now making talented young enjoyed by their print colleagues. MEAA career path, with good pay, fair journalists redundant. argued: “Journalists in the digital media conditions and protections for workers deserve the same working conditions in digital media.” In January 2019 BuzzFeed Australia said that many of our colleagues enjoy in it would cut a quarter of its workforce more traditional media — conditions MEAA condemned the announcement as a result of a worldwide savings won and defended by union members from News Corporation via a statement push. MEAA said: “These cuts at a over decades — and MEAA digital to the Fairfax-owned Australian digital disrupter like BuzzFeed — with members are actively campaigning Financial Review that at least 30 editorial a seemingly successful, diversified to extend those conditions in to their positions would be made redundant. business model, a global audience reach workplaces to level the playing field and The positions were a mixture of in the hundreds of millions, innovative ensure basic entitlements like the right voluntary and forced redundancies. content strategies and a thriving to paid overtime, time off in lieu, shift Journalists at leading metro mastheads focus on public interest journalism — penalties and payment for unsociable as well as production staff would lose highlight the crisis facing journalism hours worked are paid to digital their jobs. Production positions would around the world and the ongoing risks journalists. be shifted from News to the AAP to public interest reporting if even those subsidiary Pagemasters.234 MEAA noted media players successfully engaging For some time, MEAA has responded to that News had made sub-editors and large and younger audiences feel they the changes taking place in the industry other production staff redundant in the can no longer afford sizeable workforces by implementing its Good Jobs in Digital Northern Territory and South Australia or dedicated newsrooms. Media campaign.232 “Around the world, just a few months earlier. digital journalists are coming together “In a few short years, BuzzFeed to say they demand the same conditions News Corporation did not consult with Australia established itself as a key as those working for older, print-first the affected staff or their unions prior player on the national media scene, publications. Endless night shifts and to making the announcement — as breaking key national interest stories, daily bollockings do not have to be the required by their enterprise agreement. garnering four Walkley nominations new normal. MEAA sought answers from News for excellence in journalism, becoming Corp management about the future of a respected incubator of talent and a “Particularly in the United States over production positions in other states. journalistic innovator. the past 18 months, there has been a wave of prominent online publications MEAA Media director Katelin McInerney “MEAA welcomes experiments and new where journalists have organised with said in a statement: “It is disrespectful initiatives aimed at finding financially a union for better pay, conditions and to workers to read in a rival publication sustainable models that fund public respect at work. Huffpo and Vice are this morning that they will lose their interest journalism. BuzzFeed is an among the publications who have jobs. The company should have been important part of that mix. However, successfully unionised to secure pay and honest and upfront with its employees. hardworking journalists in London, conditions that have been withheld for News should have given its people Sydney, LA and New York shouldn’t bear too long. As the union for Australia’s the opportunity to look at other job the brunt of the failed experiments of media workers, MEAA is committed options and ways to assist the company tech investors. We need an industry that to campaigning for a charter of digital to meet its cost reduction targets. It’s employs, trains and supports journalists journalist rights to be adopted at all outrageous that the company should at startups.”231 digital media outlets.” treat loyal and long-serving specialist employees so shabbily.” MEAA members expressed anger and Job cuts still took place at traditional concern at the way these redundancies media outlets. On April 30 2018 ABC News were being conducted. Several rival management announced it would axe organisations sent messages of At Fairfax, in the wake of the takeover 20 journalists out of local newsrooms.235 support to colleagues at BuzzFeed. by Nine Entertainment Co it was MEAA said: “It appears the majority MEAA called on the company to announced that 26 journalists and of those being tapped for redundancy ensure all entitlements were paid other staff working for the group’s are senior, experienced journalists.

50 | 2019 PRESS FREEDOM REPORT Staff who are on the chopping block create a dedicated annual budget for to redundancy. Management must are local journalists dedicated to local training staff. Prior to that there was engage with its people earlier in future storytelling. Despite assurances from no dedicated corporation-wide plan restructures so that employees are management that local coverage will or budget for upskilling editorial staff. treated with respect and dignity.” not suffer, it is difficult to understand Staff regularly complain that access to how axing senior, experienced training is incredibly difficult to balance MEAA urged AAP to show compassion journalists out of state newsrooms is with a 24/7 news cycle. and courtesy by allowing staff more not going to have an impact. time to plan for their future without MEAA argued: “The ABC should be having an unrealistic deadline imposed “While MEAA understands more digital- providing their senior staff, their most on their decision-making. facing roles will be created in this move valuable asset, with the skills required by ABC to cater to audiences moving to move news into new areas.” Support for AAP journalists237 came increasingly to online, our public from the House Committees of MEAA broadcaster has to ensure it doesn’t Also during the year, AAP announced members at The Sydney Morning throw the baby out with the bath water,” plans to make up to 25 editorial Herald, The Age and The Australian McInerney said. positions redundant before June 30 Financial Review newspapers. In a 2018. It gave its staff just a week to joint resolution addressed to their “The ABC has a poor track record consider their options.236 MEAA said: colleagues at AAP, MEAA members at of skilling their staff up adequately “The first staff heard of the need to the Fairfax Media metro publications to meet the challenges of digital reorganise and make savings was at a (AAP is jointly owned by Fairfax 47 and online news production — the meeting today outlining the company’s percent, News Corp 45 percent and redundancy rounds in 2014-15 and pre-determined course of action to cut Seven West Media 8 percent) said: subsequently have seen more than 130 about 15 percent of its workforce.” talented, dedicated journalists made We condemn the endless cuts to redundant, and have been marked by MEAA Media director Katelin journalists’ numbers on the ground. These widespread under-investment in skills McInerney said: “Staff are telling us are cuts that are eroding journalism in training and a dearth of opportunities they are outraged that the company did Australia and the ability of journalists to to work in new digital areas to cement not consult with them before making do our jobs and protect and inform the those skills. this decision. But to then impose a communities we serve. deadline of Tuesday next week simply “The ABC has a duty to their audiences does not allow people enough time to We stand with our colleagues at AAP in to ensure their senior, often older and receive a redundancy estimate, talk to the face of their management’s decision more experienced staff are provided their family, or to get financial advice to cut between 20 and 25 journalist jobs, with opportunities to gain the skills on their individual circumstances.” a cut that impacts us all. needed to pivot to online. Staff said that given the scale of The loss of such vital newsgathering “We need experienced journalists in the editorial job losses, it is likely to be people — at a time when our organisation newsrooms of our public broadcasters, an extremely tough road ahead for relies so heavily on the skills and ability journalists whose expertise in the affected staff. The company has stated of AAP journalists to fill the gaps left in business of newsgathering and in that it will force redundancies if its our newsrooms by year-on-year job cuts investigative journalism not only target is not reached through voluntary — is senseless and deeply damaging. benefits their audiences but also the applications. next generation of reporters coming up We call on Fairfax management and the the ranks,” McInerney said. McInerney said: “MEAA members at other shareholders of the AAP business AAP have told management that it to reinstate these jobs so our audiences After several years of pressure from ABC must extend this ridiculous deadline don’t lose out. Our communities count union members, management finally and meet with employees to hear their on us to keep them informed and provide announced in late 2017 that it would feedback and ideas for alternatives them with the real story.

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The national News Corporation House need for a stronger women’s presence Committee endorsed this motion in in the media. “Women make up 50.7 support of their AAP colleagues: GENDER percent of the population; but the stories which appear in the media do We call on News Corp management, a GENDER PAY GAP not reflect that reality.” Key findings part-shareholder in AAP’s business, to According to the Government’s include: reinstate these jobs so our audiences Workplace Gender Equality Agency the ​ — our communities that count on us to gender pay gap, as represented by full- • Women account for 34 percent of keep them informed and provide them time adult average weekly ordinary time direct sources quoted and 24 percent with the real story — don’t lose out. earnings, in the information media and of indirect sources (sources named but telecommunications industry fell by 0.6 not directly quoted); In August 2018 the Community News percentage points in the 12 months– • Approximately 50 percent of the Group in Western Australia announced from a gender pay gap of 19.1 percent sites achieved gender parity on the it would be closing five of its papers in 2017 to 18.5 percent in November representation of male and female from early September. The papers 2018.239 journalists; and concerned were: North Coast Times, The • Female journalists wrote 76 percent Advocate, Midland Reporter, Hills and This places the industry in sixth place as of celebrity and royals stories, Avon Valley Gazette and Comment News. among the worst performers, surpassed approximately 40 percent of stories only financial and insurance services; relating to government, politics, MEAA said coverage of local issues, health care and social assistance; business, finance, law, crime and particularly local council related rental, hiring and real estate services; justice, and 12 percent of sport stories. matters, rarely get any coverage within professional, scientific and technical the state’s only daily metro newspaper, services; and the arts and recreation The report says: “Women are missing, and this should be of serious concern services industry. By contrast, the still missing. We are not missing to readers seeking transparency of local best performing industry is public from real life, of course. We work in government within these communities. administration and safety where hospitals and schools, in laboratories the gender pay gap reduced by 1.7 and in construction and we make up “As yet, there is no confirmation percentage points to 5.1 percent. 50.7 percent of the population; but as to how many staff will be made the stories which appear in the media redundant, and we are hopeful that The media industry is also performing do not reflect that reality. Instead, the a number of reporters will be moved worse than the national average. The media reality is that women are not across into other papers,” MEAA said. agency says that on a national basis the experts, not sources. As those sources, gender pay gap has reached its lowest we are missing from news stories and “While a blow to the local point in more than 20 years at 14.1 from feature stories, we are missing communities affected, it is also a percent. from photos both as photographers and concern for younger journalists, as as subjects; and we are missing in that CNG has been a wonderful training “Using the latest ABS Average Weekly very influential place in the Australian ground. Many WA journalists got Earnings trend series data, the media landscape, our voices are missing their start on the CNG papers, and Workplace Gender Equality Agency from opinion pieces and columns. Some have gone on to work in national and (WGEA) has calculated the national organisations are trying to change that international newsrooms.”238 gender pay gap as 14.1 percent for full- dynamic…” time employees, a difference of $239.80 In late March The Courier Mail per week.”240 The findings were stark. announced the paper would be What do we read when we enter the outsourcing production work. GENDER DIVERSITY top space of those websites? We read Back bench and sub-editors from On April 4 2019 the Women’s Leadership stories about men, by men. Our snapshot The Courier Mail, Sunday Mail Institute Australia released its 2019 showed men were quoted far more often and magazines would be affected. Women for Media Report: You can’t be what than women and that the stories by male All casual shifts would move to you can’t see by Jenna Price with Anne journalists were positioned slightly more Pagemasters with the loss of nine full- Maree Payne.241 The report focusses its often in the top spots on the home pages time equivalent permanent roles. research on mainstream Australian digital of these websites. media, providing a snapshot of Australia’s In the same week, West Australian 15 most influential news sites on four Women write about royals and men write Newspapers announced it was seeking consecutive Thursdays in October 2018. about political leaders. Men write about expressions of interest in voluntary Thursdays are a high traffic day with big sport, women write about media, the arts redundancies. Management said its audiences, between noon and 2pm. and entertainment. review of the company’s operations had revealed what it called “excess The top five stories on each site were Women are also absent from the photos capability. The number of voluntary selected based on their position on which accompany those top stories. Our redundancies being sought was unclear. the homepage. In February 2019, the data collection coincided with the royal research analysed the top five opinion visit; if photographs of Meghan Markle There were also job losses at the pieces on each site across Tuesday to and female crime victims were omitted major magazines groups. In May 2018 Saturday in one week, again between from our data set, the representation of Pacific Magazines made five positions noon and 2pm. Two ordinary readers of female subjects would have been even redundant as part of a restructure news sites were then asked to identify lower. If we want those websites to reflect of its production hub process. In what they considered to be the top Australia, we urgently need more women July Bauer Media also made changes stories at that time. as subjects in photographs. It might help to its production systems with 17 to have more women behind the camera positions lost (11 redundancies and six The authors say the research’s results — just under 80 per cent of the bylines on vacancies not replaced). demonstrate the critical and ongoing photographs belong to men.

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Women journalists occupy that important top space just under half the time but here’s what the figures show: men’s voices as sources are louder and prouder. Across our data set from all of the sites analysed, the average representation of female sources was just over one-third.

Only the stories on one news site quoted more women than men; and that was BuzzFeed Australia. Of the rest, the next best was 9News with women representing 45 per cent of the sources quoted. At the other end sits the Australian Financial Review, where women made up only 14 per cent of sources. agreements nationally in major media have far-reaching implications for the Finally, if you read an opinion piece outlets in Australia, but these figures whole media industry. from the two national publications, The do not tell the whole story as they don’t During enterprise bargaining agreement Australian and the Financial Review, capture numbers in smaller and digital negotiations over several years, MEAA know that they will nearly always be newsrooms for instance. members employed by Fairfax have written by men.242 been urging the company to do its bit to MEAA had found that despite all of close the superannuation gap. On May Gender in the newsroom matters, the these companies reporting to the 28 2018 the company finally stumped report said, “if you want to read more Workplace Gender Equality Agency up the money to ensure employees women’s voices. Women quote more on their overall workforce gender taking time out to have a family are not women than men do — but they still breakdowns, these companies, with disadvantaged at the end of their career quote a lot of men… The representation the exception of Fairfax; universally when they access their retirement of female journalists credited as authors refuse to split that data into gender savings. across our news data set ranged from breakdowns in newsrooms for their a low of 14 percent at The Herald Sun employees when requested by MEAA. MEAA said: “This terrific win has not to a high of 70 per cent on BuzzFeed. come out of thin air. MEAA members Women occupy nearly half the real- McInerney told the report’s authors: and Fairfax Media house committee estate of the top stories on the home “This would give management and delegates have worked hard during page of our leading news sites... union members much better visibility rounds of bargaining, and then in of the gender gap that exists, and the ‘off-season’ between agreements “Articles co-authored by male and identify where we need more women through the union-established Gender female journalists are also significantly to be employed to even out newsrooms and Diversity working group, to keep more likely to use female sources (37 that skew male, as well as to identify this important issue on the company’s per cent) than articles written solely by where real pay action is needed to priority list. Today we recognise their male journalists (24 per cent). In other close the huge 21.8 percent pay gap we efforts over the past half a decade — and words, if you want more diverse sources, know exists between female and male their win will not only have a big impact a good tip is to have more diverse salaries in the information, media and for workers at Fairfax, but will blaze the writers. These figures show women are a communications sectors. trail for the whole media industry. good influence on gender diversity.” “Further, a brief review of the “MEAA members have pursued not But the report warned that gender management structures of salaried only this important issue, but have kept diversity in the newsroom doesn’t newsrooms shows women remain the pressure on management to do the automatically solve a lack of gender severely underrepresented in the right thing by their employees — in diversity in reporting. “At the other decision-making levels and that career particular their female workforce — in end of the spectrum in our sample, paths up the ranks can be difficult to all areas, including closing the pay 100 percent of the sources cited by see for women — and this, in turn, has and opportunity gap, creating a more female journalists at The Herald Sun a knock-on effect for hiring women and balanced approach to parental leave were male, and female journalists also working actively to provide opportunities and now to do their part to correct the used a high proportion of male sources for women coming up the ladder. This appalling gap between the retirement at the Financial Review (82 percent), gap in pay and opportunity persists savings of female and male workers. the ABC (78 percent), and The Daily despite female university graduates Telegraph, The Courier Mail and The outnumbering their male counterparts “Those dedicated MEAA members West Australian (each at 75 percent). for many years,” McInerney said. — many of whom have now left the These figures suggest that the gender company — should be incredibly of the journalist alone is not a reliable The report is available from: proud of all the work they have done predictor of the likelihood of female https://www.wlia.org.au/2019-women- over the years to bring Fairfax senior sources being cited.” for-media-report management to this point where management recognises the key role it MEAA contributed analysis to the PARENTAL LEAVE AND must play in combating superannuation report. MEAA Media director Katelin SUPERANNUATION inequity.” McInerney said data collected during After years of campaigning by MEAA enterprise bargaining shows there at members, Fairfax Media agreed to MEAA welcomed the initiative — a least 6100 ongoing salaried journalists extend superannuation to employees first for a major commercial media employed in newsrooms on collective on parental leave in a decision that will organisation.243

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INTERNATIONAL WOMEN’S DAY tolerance policy towards all forms of • In Nepal, the Nepal Press Union is On International Women’s Day, March sexist behaviour and gender-based increasing its gender quota to 30 8 2018, the International Federation of discrimination. percent and the Federation of Nepali Journalists (IFJ) called for necessary and • Carefully monitor the payment to men Journalists increased its executive, substantial improvement of women’s and women and set a target for when with one female vice president. representation in the media and the the gender pay gap shall be closed. • In Taiwan, while it has no quota unions that represent them at work. “If • Treat all instances of intimidation and system, the Association of Taiwan we want to improve quality journalism, violence against female journalists Journalists has more than 50 percent then the media must also accurately as attacks against the whole of its executive represented by women reflect society in its ranks. It is only when organisation, instead of leaving your journalists we have genuine equality inside our employee isolated. • In Myanmar, the Myanmar Journalist media operations and institutions that • Ensure that you have a system in place Association has a minimum 30 percent this can truly be achieved,” the IFJ said.244 to act upon abuse; collect the evidence gender quota on its executive and take it to the authorities every • In Afghanistan, the Afghanistan The IFJ joined a coalition of media single time. Independent Journalists Association organisations calling upon all media • Set clear and transparent procedures has a 30 percent quota in executive leaders around the globe to stand related to content moderation, with positions and at least five of its up and protect the rights of female the view of tackling abusive content provincial branch leaders are women. journalists, both staff and freelancers. swiftly while protecting the right to freedom of expression. IFJ president Philippe Leruth said: The IFJ said recent research had • Provide sex disaggregated data to “Ahead of UN Beijing+25 [the UN produced alarming results. monitor where women stand in the conference in 2020 to mark the 25th newsrooms and act upon the findings. anniversary of the Fourth World • Female journalists are systematically • In the Asia-Pacific, the Conference on Women and adoption of paid less in the media industry — in #IFJWomenLead campaign is part of the Beijing Declaration and Platform the UK alone female journalists earn IFJ Asia Pacific’s ongoing work to focus for Action (1995)] we must make a 17.4 percent less than their male on the vital role that unions have in difference and call on media and colleagues. representing women journalists’ rights unions to do everything they can to • Almost a third of female journalists at work.245 advance women in the media. consider leaving the profession because of the threats, intimidation or Releasing figures on women’s “The future of journalism cannot be attacks they endure, and these figures representation in media unions in addressed without looking into our daily are even higher in fragile contexts and the region, the IFJ said that women routines and leadership habits towards conflict zones. journalists currently represent 31 women. Let’s make a change and look • More than a third of female journalists percent of all members in journalist into our own structures, as unions, to avoided reporting certain stories for unions and media associations in the make sure women are fairly represented the same reason. Asia-Pacific, yet they occupied just at all levels and that we adopt strong • Almost half of female journalists 24 percent of positions on executive policies securing gender equality.” experience online abuse. Many of committees. More work is needed and them indicate the abuse has led them changes are happening in unions that WOMEN IN MEDIA to become less active or even inactive are active and committed to a gender Women in Media (WiM) is a nationwide on social media, while it’s a crucial equality agenda. MEAA initiative for women working part of the job. in all facets of the media — from The IFJ said despite digital disruption journalism and media advisory work to “The voices of far too many female and massive media job losses, and corporate affairs. journalists are silenced, which leads to membership in journalist unions many untold stories. This has to stop. continues to grow in the Asia-Pacific. Through the influence and backing of Media must hire a diverse workforce Women’s membership also continues MEAA members, Women in Media aims and adopt gender equality policies in to grow, increasing by 20 percent since to improve the working lives of women order to stand by women journalists 2015 — compared to an overall growth in the industry: and to produce stories that are relevant in union membership of 7 percent. to all groups in society: balanced Industrial Aims — Women in Media representation in the newsroom is "These are the wins the IFJ is celebrating campaigns to close the equity and essential to effectively talk to everyone. today on International Women’s Day." opportunity gap for women in media, namely, superannuation for periods “That is why today we ask you, as Of its members, 37 percent of IFJ of parental leave, better reporting leader and role model for the whole affiliates have already introduced breakdowns on staff make-up, pay rates organisation, to: gender quotas for executive bodies, and and management structure by gender more than 40 percent of IFJ affiliates and access to family violence leave. • Show your female journalists, both have established gender policies in staff and freelance, that you will place: Advocacy — Women in Media works protect their rights and support them • In Japan, Shinburoren is introducing directly with media companies, when abuse occurs. a gender quota — with a minimum 10 educating senior management on the • Promote a culture of safety within women on executive committee — to need for greater support for women in your organisation, have zero- be introduced in the next 12 months the media, the need for sponsorship and THE MEDIA MUST REFLECT SOCIETY IN ITS RANKS

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mentoring within organisations and creating a best-practice environment CULTURAL AND to ensure women are able to fully and equitably contribute to their industry — be it news, public relations, RELIGIOUS DIVERSITY communications or creative freelance. n March 28 2019, in the appeal to? Newsrooms should be Mentoring — The national mentoring wake of the Christchurch reflecting the vibrant and complex program draws together senior industry shootings MEAA, in nature of the Australian people.”250 figures to offer women in the early partnership with Media stages of their career support, advice Diversity Australia (www. Director and co-founder Antoinette and the benefit of their experience. Omediadiversityaustralia.org), hosted Lattouf said: “We’re advocating for a an Australian media industry forum media that looks like Australia, one Events — Women in Media holds examining the reporting of hate that truly represents the Australians events that focus on women’s issues crimes and extremism. The event you see in this room and when you walk including panel discussions, keynote was moderated by former Race down the street. A media that looks addresses, professional development Discrimination Commissioner Dr Tim and sounds like Australia. It’s not just and Q&A sessions that aim to Soutphimmasane. Speakers included the faces you see on television; it’s the bolster confidence, offer networking journalist and author Amal Award, stories and the perspectives. That’s opportunities, training and the Crescent Foundation and Media what we think really needs to shift.”251 chance to hear from women in senior Diversity Australia board member Talal positions in the media industry. Yassine, 10 daily news editor Rashell Media Diversity Australia is a nation- Habib, ABC head of editorial policies wide not-for-profit organisation run Research — Women in Media Craig McMurtrie and national editor of by journalists and communications commissions important research The Age and the Sydney Morning Herald professionals that works to make news regarding gender and women’s Tory McGuire. media more reflective of all Australians. participation in media industries. The organisation provides: The panel discussed the need for more • support and networking opportunities In 2016 it produced the Mates Over diverse newsrooms; newsroom editors for journalists and media professionals Merit report246 which found: and producers needing to listen to from culturally and linguistically • Discrimination remains rife, with diverse communities when reporting diverse backgrounds; policies “on paper, not in practice”: hate speech, and the importance of • conducts empirical research about Only 11 percent of respondents rated strong union membership so that ethnic and cultural diversity in them “very effective”. journalists can collectively push Australian media; • 41 percent of women said they’d back and report ethically as they are • works in collaboration with media been harassed, bullied or trolled on obligated to do by MEAA’s Journalist outlets on policies and strategies; social media, while engaging with Code of Ethics.248 • fosters inclusive discussion that audiences; several were silenced, or respects different viewpoints; changed career. MEAA has also been working with • recognises the importance of • Only 16 percent of respondents were Media Diversity Australia to develop Aboriginal and Torres Strait Islander aware of their employer’s strategies other workshops and forums in order roles in the media; and to deal with threats. to understand the diversity barriers in • stimulates public discourse on issues • Almost half (48 percent) said newsrooms and how to develop and related to cultural diversity including they’d experienced intimidation, better support the push for greater religion, gender, disability, income, abuse or sexual harassment in the diversity in Australian media. age, geography and socio-economic workplace. backgrounds. • A quarter of the women who’d taken At the launch of the organisation in maternity leave said they’d been October 2017, journalist , a The organisation has produced discriminated against, upon return to member of Media Diversity Australia’s Indigenous guidelines and a newsroom work. Some said they’d been put on advisory board, said Australian handbook to assist media to report the ‘mummy track’. television is “incredibly narrowcast, on Aboriginal and Torres Strait • One in three (34 percent) said they what some TV people in America call Islander peoples’ issues. It has also didn’t feel confident to speak up affectionately a ‘snowfield’… Where created a new Walkley Award that about discrimination. does diversity turn up on our screens? honours journalists who are making an • There’s evidence of an entrenched Reality TV — mostly because you can’t outstanding contribution through their gender pay gap (reinforced by stop brown people cooking.” According reporting or coverage of diverse people research from the Workplace Gender to Mumbrella, he noted that this or issues in Australia. “This includes Equality Agency of a 23.3 percent gap diversity does not translate onto panel culturally and linguistically diverse in the sector). shows, comedies or scripted dramas.”249 communities (CALD) and people with disability (PWD). It celebrates reporting MEAA is using the report’s findings Media Diversity Australia’s chair and that demonstrates notable courage in to work with media employers co-founder Isabel Lo said: “There is raising awareness of CALD and/or PWD to “fully harness the incredible no doubt that mainstream media in experiences and perspectives, as well as potential of their female workforce”. Australia is facing a crisis of sorts… innovation in the telling of these stories. Strategies include audits and action In the face of transforming business It recognises the significance of media on the gender pay gap; improved models, news leaders are viewing the coverage in providing nuanced reporting procedures to deal with social media diversity issue as secondary priorities. which serves to alter perceptions and harassment; and anti-discrimination We believe diversity is central to attitudes, challenge stereotypes and fight policies to be put into practice.247 audience reach. Who are we trying misinformation.”252

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OVERCOMING OFFENCE AND IGNORANCE THROUGH DIVERSITY AND REPRESENTATION In April 2018 journalist Alex McKinnon examined an Australian Human Rights Commission report, Leading for Change: A blueprint for cultural diversity and inclusive leadership revisited.253 McKinnon went on to discuss the cultural and ethnic make-up of Australia’s media:

“The faces on our TV screens get most of our attention, but what about the people behind the scenes? Around 19,000 people listed their occupation as ‘journalist’ in the 2016 Census. The census doesn’t ask people to identify their ethnic background, but the other information those 19,000 Sunrise panel Channel 7 Sunrise journalists provided gives a pretty clear snapshot of the types of Australians who as many headlines fretting that “Sydney be protecting Aboriginal kids, and typically make a career in journalism — is now more Asian than European”255, putting them back into that culture… and the types of Australians who don’t, or intrepid white journalists going on what culture are they growing up and or can’t. As it turns out, Australia’s David Attenborough-style journeys to seeing? Well, they’re getting abused, journalism and media industries are just Lakemba, aka ‘Muslim Land’?256 Is it they’re getting hurt and they’re getting as ethnically homogenous as the corporate any wonder that coverage of Indigenous damaged.”260 and political worlds. issues is frequently patronising, racist or plain ignorant? Do we really need 643 The Australian Communications and “A 2016 survey of media journalists in Canberra when the Northern Media Authority found that the March outlets by consultancy firm Territory has only five outside of Darwin 13 2018 segment was in breach of the PricewaterhouseCoopers254 found that and Alice Springs? industry code of practice as it contained the average Australian media worker is strong negative generalisations about ‘a 27-year-old white male who lives in While groups like Media Diversity Indigenous people as a group. “These Bondi’… It found ‘the top 10 suburbs for Australia are trying to draw attention to included sweeping references to a media and entertainment people are all journalism’s lack of diversity, there are ‘generation’ of young Indigenous in Sydney, either in the eastern suburbs or few signs the media industry as a whole children being abused,” ACMA said. the inner west’. has recognised the problem, or is doing much to try and fix it. 257 “While it may not have been Seven’s The Census shows how chronic that intention, by implication the segment homogeneity really is. Sydney journalists There is much work to be done. conveyed that children left in are far more likely to live in relatively Indigenous families would be abused wealthy, white parts of town like the CBD, On September 4 2018, the Australian and neglected, in contrast to non- the eastern suburbs, the inner west and Communications and Media Authority Indigenous families where they would the north shore than they are to live in found the program be protected.”261 places like Blacktown and Parramatta. In Sunrise had breached broadcasting Melbourne, journalists are overwhelmingly standards clause 3.3.1 for accuracy and Sunrise responded to the concerns about concentrated in the city centre, rather clause 2.6.2 for intense dislike, serious the segment by producing a “follow-up than the outer suburbs. contempt or severe ridicule on the basis segment”. But ACMA was not satisfied. of race when it aired an all-white panel In its finding, it said: “Clause 3.3.4 Journos are also much more likely to on its “Hot Topics” segment discussing provides that a licensee will not breach live in capital cities than everyone else, the adoption of Indigenous children and clause 3.3.1 if it makes a correction in an especially as news outlets close down child abuse.258 appropriate manner within 30 days of a bureaus in regional areas and centralise complaint being received or referred to to cut costs. In a nation where more Introducing the segment the host the ACMA. In its submission, the licensee than 28 percent of people are born incorrectly stated that Aboriginal argued that the follow-up ‘Hot Topics’ overseas, migrant journalists are more children can only be cared for by their segment broadcast on 20 March 2018 likely to be born in “north-west Europe” relatives or Aboriginal carers.259 clarified any inaccuracy broadcast in the than anywhere else. Astonishingly, earlier segment. only 118 journalists identified as being A panellist subsequently said: “Please, of Aboriginal background. Just three don’t worry about the people who decry “The follow-up segment was introduced journalists identified as being of Torres and hand-wring and say this will be by Sunrise presenter, Mr David Koch, Strait Islander background, while another another Stolen Generation. Just like the with the following statement: ‘We know three identified as both. first Stolen Generation where a lot of it’s a conversation around Aboriginal children were taken because it was for children and their removal, [that] Would a media industry with more people their wellbeing, we need to do it again, sparked concern and protest last week, who grew up outside of Australia’s perhaps.” so we’re responding to calls by the wealthiest, whitest enclaves constantly Aboriginal community to look at the treat Sydney’s west like a rolling re- A second panellist added: “We need issue with the experts, and we’ve got the enactment of Underbelly? Would we get to be protecting kids, we need to experts this morning.’”262

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ACMA found that the “detailed follow- background to the story which was The experience of former Sky News up segment” was not a correction blurred to prevent any person being Canberra employee Rashna Farrukh270 because it was not labelled as such. identified and Seven is able to defend is just one example of the difficulties “The ACMA has noted in a number the case on that basis.”265 of working in a newsroom where of previous investigations that for a fellow Sky News employees and their correction to be appropriate, it would On February 15 2019, the Civil and guests demonstrated little respect for ‘ordinarily involve a clear on-air Administrative Tribunal of New South community diversity. acknowledgement of the error made in Wales found Channel Nine Today show a particular broadcast and a statement presenter Sonia Kruger had “vilified “I compromised my values and of the correct position, in such a way Muslim people when she called for beliefs to stand idly by as I watched that there is a clear connection between Australia to close its borders to those of commentators and pundits instil more the error made and the correction’… the Islamic faith during a segment on the and more fear into their viewers. The follow-up segment was not Today show, but [she] did not engage in flagged as a correction. There was no racial vilification because Muslim people “I stood on the other side of the studio acknowledgement of any inaccuracy living in Australia are not a race.” 266 doors while they slammed every in the earlier segment broadcast on minority group in the country — mine 13 March 2018… Had the presenter The tribunal was investigating an included — increasing polarisation and explicitly acknowledged the inaccurate incident screened on July 18 2016. paranoia among their viewers. statement from the previous episode The racial vilification complaint was and corrected that statement, the ACMA dismissed by the tribunal.267 “I’d walk commentators to the studio would have been satisfied that the where after some very polite chit chat correction was made in an appropriate In its finding, the tribunal said: — ‘how are you?’, ‘how’s uni going?’— manner,” the report said. “Kruger’s ‘vilifying remarks’ in July 2016 they’d go on air and talk about my ‘amounted to a stereotypical attack on community. The Guardian reported on the all Muslims in Australia’ and had the company’s response: “Seven’s director capacity to ‘encourage hatred towards, “I was there when Cory Bernardi of news and public affairs said the or serious contempt for, Australian advocated for banning the burqa, and decision was a “direct assault on the Muslims by ordinary members of the when he called on the government to workings of an independent media”, Australian population’.”268 remove “offend” and “insult” from 18C called it “censorship”, and said that that of the Racial Discrimination Act under Seven would seek judicial appeal.”263 Kruger’s remarks on Muslims were the guise of free speech. (Guardian Australia is partnering with made while part of a panel discussing IndigenousX to showcase the diversity the question: “Do more migrants “I was there when of Indigenous peoples and opinions increase the risk of terror attacks?” The proudly talked about how she would, the from around the country.) tribunal said: following day, put forward the ‘It’s OK to Be White’ motion to counter the rise On April 5 2019 it was reported …we cannot accept that the remarks of Ms of so-called anti-white racism. that Channel 7 was “being sued for Kruger were “reasonable”. She expressed defamation by a group of Aboriginal the view that the size of Australia’s “I watched as Bronwyn Bishop, people from the remote community of Muslim population meant there should be following the ‘terror raids’ in Sydney, Yirrkala over a segment on breakfast no further Muslim migration irrespective insisting that ‘war’ had been declared TV show Sunrise in which three of any other matter. This appears to be against western culture. white people discussed the Stolen unsupported by any evidence or material Generations. placed before the Tribunal… “I answered calls from viewers who yelled about immigrants and Muslims “The lawsuit, filed in the Federal Court In our view, Ms Kruger could have ruining Australia. They did not realise in February, alleges Sunrise defamed expressed her comments in a more that the person on the other end of Yolngu woman Kathy Mununggurr and measured manner to avoid a finding of the phone was both of those things,” 14 others when it played background vilification.269 Farrukh wrote. footage of them, with a blurring effect, as the panel discussion took place. The media industry must address the Sky News Australia covered the diversity issue. MEAA believes the Christchurch massacre by using Mununggurr and the other applicants pressing issue of greater media diversity segments of the gunman’s video argue they were identifiable in the must be addressed to ensure the media stream. Sky later explained in a footage and that by playing it Sunrise reflects the community it serves. statement: “…we ran heavily edited and had suggested they abused, assaulted carefully selected video that featured or neglected children, were incapable TOXIC WORK ENVIRONMENTS no vision from inside the mosque, no of protecting their children, and were Greater media diversity is a workplace shootings and no victims. At no stage members of a dysfunctional community. issue and a press freedom issue, not did we feature the live vision. Contrary Seven intends to defend the lawsuit.”264 least because a lack of awareness of to some reports, we ceased running diversity in our newsrooms places any vision on Sky News Live from BuzzFeed News reported a Seven people in in discomfort and isolation early Saturday morning, unlike other spokesman as saying: “The proceedings while at work. At worst it places people networks who continued to do so.”271 relate to some footage used in the in danger as they carry out their duties. GREATER MEDIA DIVERSITY IS A WORKPLACE AND PRESS FREEDOM ISSUE

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THERE IS A DIVIDE BETWEEN YOUNGER STAFF AND THE OLD GUARD

By then, it was too late. Damage had comparable TV experience. Our media There was discussion about how the been done to Sky, its audience and to at networks and internal mentoring media treats Muslims and non-Muslims least one of its employees — Farrukh opportunities need to focus on widening differently after an atrocity, with one resigned on that Saturday. the platform to our black sisters so that speaker saying there would have been their voices are heard loud and clear.” more coverage of the victims if they had As Farrukh says, “When I reflected on been European Australians, rather than who I work for and whether I could Clearly, there is still much to be done Muslims. justify going into work this weekend, I to change the media industry and how knew what I had to do. Even as young it represents and reports on Australia There was surprise at the tenor of journalists, we should act on our morals and Australians — as well as to change contrition from some media outlets now rather than at some point in the the representation and diversity among after Christchurch. “People were future where we assume that we will Australia’s journalists and journalism. scrambling to disassociate themselves have more of a say. (from white nationalism)”. Was some AFTER CHRISTCHURCH — of that insincere or opportunistic in an “In the media industry, who we work REPORTING ON HATE CRIMES attempt to absolve themselves after for matters, as we are responsible in AND EXTREMISM many years of airing the positions of some way for the information being On March 28 2019, MEAA and Media white nationalists? There was talk also disseminated. What we distribute has Diversity Australia hosted a forum of many post-Christchurch opinion consequences… The news we read, the Reporting on Hate Crimes and Extremism pieces having had a lack of Muslim way we talk about minorities in our at the State Library of NSW. The voices and too many white voices saying community — every decision we make forum was moderated by former Race “we didn’t see this coming”. Had Muslim matters and it all adds up. Discrimination Commissioner Dr Tim people been asked, they definitely saw it Soutphammasane and featured a panel coming — and more diverse newsrooms “As we saw in Christchurch, what of journalists, authors, news editors and would have helped anticipate an attack happens in our media can have real life a representative from Media Diversity like this. consequences.”272 Australia. Had the media provided extremists But there can be change. On the The forum began with a discussion with a platform for their hate following Monday the ABC’s The Drum about how media outlets covered speech? White extremists had been show presented “a panel of all-Muslim the Christchurch massacre, and the normalised by their years of appearing women” discussing the impact of the decisions made on whether or not to in the mainstream media where white Christchurch shooting and particularly screen parts of the terrorist’s livestream nationalism was regularly given a examining a variety of issues linked to of the attack. platform with little examination. media diversity including “… what part Media panellists conceded that there do politics and the media play in the The discussion examined the need is a lot of soul-searching now taking rise of white supremacy, and when does to make decisions on the spot place about whether media outlets had free speech become hate speech”.273 about a fast moving story, including interrogated the issue hard enough, deciding not to air killer’s video and that have done things differently But as all five panellists noted and . As the video was with a more diverse workforce. “In in a Tweet274 (under the hastag available uncensored on thousands of Australia, you can say just about #representationmatters) that was sent Facebook and YouTube accounts, the anything about Muslims and it’s okay”. three hours before the program went forum discussed how the media can Instead, one speaker said, “we need to live: “Tonight will be an only-Muslim control a narrative in a responsible normalise difference in newsrooms, women panel on ABC’s The Drum. way that social media cannot. There like in other businesses”. We have been told that this has not was discussion that video should be happened before. This was put together seen because evil in society needed Hate speech exponents had huge in the last 24 hours. to be seen in order to create change. unfiltered audiences on the internet, so “Sometimes you need to shock people the role of journalists was not to give “We acknowledge the absence of First into caring,” said one panellist, them a platform, but to interrogate Nation and black Muslim women on although acknowledging a line had them. While there were plenty of articles the panel who as a minority within a to be drawn when the rationale for interrogating structural racism, “they minority have historically and to date broadcasting violent footage or aren’t making it to mainstream media”. been excluded from media engagement publishing an extremist manifesto is opportunities,” they wrote. to get clicks and page views. After Christchurch, there were not enough voices in the media from the “Every one of us was willing to Identifying the killer by media outlets community that was attacked: Muslims. give up our spot but we could not was also discussed — New Zealand One panellist had tried to pitch an find somebody available in the Prime Minister Jacinda Ardern refused article to a publication only to be told short time frame, or willing to do it to name the killer and had good that they already had published a piece (understandably) with the additional motivations for taking that position. from her community, however the writer constraint that the program would “People can have personal views but was a Christian Arab, not a Muslim. only consider a panellist who had we’re news and we have to name him Diversity in newsrooms will bring in been on the show before or [who had] and say where he comes from.” different life experiences, different

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contexts and can add value and dimension to news coverage. ’s The Project host Waleed Aly’s DIGITAL PLATFORMS post-Christchurch interview with Prime Minister Scott Morrison was so powerful he Australian Competition key algorithms, in determining the order in because Aly had “skin in the game”. & Consumer Commission’s which content appears, is not at all clear.” inquiry into digital platforms Years of Islamophobia in the media released its preliminary findings Google and Facebook are now the meant “a lot of good Muslim voices on December 10 2018.276 dominant gateways between news media don’t want to put their heads above T businesses and audiences and this can the parapet. But Christchurch means The inquiry was triggered on December reduce the brand value and recognition of there is no choice because you need to 4 2017 following the Senate Select media businesses. In addition traditional be part of the debate about the future Committee’s inquiry into the Future of media businesses and in particular, of the country”. Public Interest Journalism. The ACCC traditional print media businesses, was directed to conduct an inquiry have lost advertising revenue to digital While the media “had no context” examining “the effect that digital platforms. This has threatened the viability for attacks like Christchurch because search engines, social media platforms of business models of the print media and they were predominantly white, and other digital content aggregation their ability to monetise journalism. non-Muslims, it was clear they had platforms have on competition in empathy. But “empathy needs to be media and advertising services markets. “News and journalism perform a translated into action. Business is so In particular, the inquiry will look at critical role in society. The downturn in far ahead of you.” The private sector the impact of digital platforms on the advertising revenue has led to a cut in had culturally and linguistically supply of news and journalistic content the number of journalists over the past diverse communities (CALD) and the implications of this for media decade. This has implications across representation rates well above content creators, advertisers and society because of the important role the the media. Leading consulting firm consumers.”277 media plays in exposing corruption and PriceWaterhouseCoopers had an 80 holding governments, companies, powerful percent CALD. The preliminary report contained 11 individuals and institutions to account,” preliminary recommendations and eight Mr Sims said. By contrast, the ABC has about 20 areas for further analysis as the inquiry percent of staff from CALD/non- continues. The inquiry has also considered important English speaking backgrounds, and questions about the range and reliability this was a factor in the way the ABC The ACCC said it had reached the of news available via Google and covers the news. While the ABC has view that Google has substantial Facebook. The ACCC’s preliminary view diverse voices presenting shows on- market power in online search, search is that consumers face a potential risk of air, the people in decision-making advertising and news referral, and filter bubbles, or echo chambers, and less positions off-air, including producers Facebook has substantial market power reliable news on digital platforms. While and editors, were still dominated in markets for social media, display the evidence of filter bubbles arising on by white men. There is also a advertising and online news referral. digital platforms in Australia is not yet generational divide between younger strong, the importance of this issue means staff and “the old guard” who grew up The ACCC said: it requires close scrutiny. in an era before the internet and social media, and have a different ethical The report outlines the ACCC’s concerns The ACCC is further concerned with framework for news judgement. “That regarding the market power held by these the large amount and variety of data is being challenged now.” key platforms, including their impact on which digital platforms such as Google Australian businesses and, in particular, and Facebook collect on Australian Should Islamophobia and “hate on the ability of media businesses to consumers, which go beyond the data speech” be outlawed? While there was monetise their content. The report also which users actively provide when using support for the idea, other speakers outlines concerns regarding the extent to the digital platform. said a solution was to have more which consumers’ data is collected and different voices in newsrooms. used to enable targeted advertising. Research commissioned as part of the inquiry indicates consumers are concerned The shrill contemporary nature of “Digital platforms have significantly about the extent and range of information civil discourse, particularly on social transformed our lives, the way we collected by digital platforms. The ACCC is media, was unhelpful. Newsrooms communicate with each other and access in particular concerned about the length, shouldn’t be conflated with social news and information. We appreciate complexity and ambiguity of online terms media — it would be dangerous to that many of these changes have been of service and privacy policies, including impose on newsrooms the types of positive for consumers in relation to the click-wrap agreements with take-it-or- restrictions that are being suggested way they access news and information leave-it terms. for social media. and how they interact with each other and with businesses,” ACCC Chair Rod Without adequate information and with At the conclusion of the forum, the Sims said. limited choice, consumers are unable to federal president of MEAA’s Media make informed decisions, which can both section, Marcus Strom, said the union “But digital platforms are also harm consumers and impede competition. would be developing new guidelines unavoidable business partners for later this year on reporting on hate many Australian businesses. Google The preliminary recommendations and the speech and extremism, which would and Facebook perform a critical role in areas for further analysis identified in the be opened to public comment before enabling businesses, including online news preliminary report have been put forward being adopted as an addition to the media businesses, to reach consumers. as potential options to address the actual MEAA Journalist Code of Ethics.275 However, the operation of these platforms’ and potential negative impacts of digital

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platforms and contribute to the debate The ACCC also notes that consumers will continuing journalist (and allied staff) about the appropriate level of government be better off if they can make informed job losses, media company downturns oversight. and genuine choices as to how digital and the progressive abandonment of platforms collect and use their data, coverage of newsworthy matters, will The report found that key digital and proposes changes to the Privacy Act continue, if not escalate. platforms, Google and Facebook, had both to enable consumers to make informed the ability and incentive to favour related decisions. “MEAA is however anxious that several businesses or those businesses with which of the Commission’s recommendations they may have an existing commercial The ACCC is further considering a potentially suggest an increased role relationship. The platforms’ algorithms recommendation for a specific code for Government (and its agencies) to rank and display advertising and news of practice for digital platforms’ data stipulate how media companies should content in a way that lacks transparency collection to better inform consumers and be run and vet content. to advertisers and news organisations. improve their bargaining power. “In the same vein, MEAA is concerned “Organisations like Google and Facebook “The inquiry has also uncovered some that the Commission’s principled efforts are more than mere distributors or pure concerns that certain digital platforms to improve the digital platforms’ carriage intermediaries in the supply of news in have breached competition or consumer of reliable, verified quality news by Australia; they increasingly perform laws, and the ACCC is currently pursuing ranking and badging measures, similar functions as media businesses like investigating five such allegations to will further empower Google and selecting, curating and ranking content. determine if enforcement action is Facebook by enabling them to arbitrate Yet, digital platforms face less regulation warranted,” Mr Sims said. between quality and questionable than many media businesses,” Mr Sims news media. We do not support these said. The ACCC is seeking feedback on its companies occupying such a position. preliminary recommendations, and the “The ACCC considers that the strong eight proposed areas for further analysis MEAA concluded by saying it had market position of digital platforms like and assessment. hoped that the Commission would have Google and Facebook justifies a greater more closely considered the objective level of regulatory oversight,” Mr Sims These eight areas for further analysis needs for digital platforms’ to pay for said. include the proposed ‘badging’ by digital media companies’ content. “These platforms of media content, produced by arrangements are, in MEAA’s opinion, “Australian law does not prohibit a an accountable media business, as well key to any constructive resolution of business from possessing significant as options to fund the production of news the lopsided nature of the relationship market power or using its efficiencies and journalism, such as tax deductions or between the digital platforms and the or skills to ‘out compete’ its rivals. But subsidies, a digital platforms ombudsman media companies which, in substantial when their dominant position is at risk of to investigate complaints and provide a part, drive users to the platforms.” creating competitive or consumer harm, timely and cost effective means to resolve governments should stay ahead of the disputes, and a proposal for digital In some specific responses to ACCC game and act to protect consumers and platforms to allow consumers to opt out of preliminary recommendations, MEAA businesses through regulation.” targeted advertising.278 said:

The report makes preliminary On February 15 2019, in its response • MEAA supports in principle the ability recommendations aiming to address MEAA welcomed the preliminary of a regulatory body to assess and Google and Facebook’s market power report saying it should “drive the make findings about the distortive and promote increased consumer choice, urgent need for reforms to our laws impact of algorithms in terms of news including a proposal that would prevent and policies which currently ignore consumption. By this, MEAA submits Google’s internet browser (Chrome) the overwhelming power of the major that we support assessment of digital being installed as a default browser on digital platforms, especially with regard platforms that do not produce news mobile devices, computers and tablets and to the Australian news media industry.” content providing prominence to Google’s search engine being installed as a news information where no effort has default search engine on internet browsers. MEAA acknowledged that the ACCC been made to verify the information had rightly recognised that the provided or where ranking of news The ACCC also proposes that a new or diminution of the media sector has information is influenced by a existing regulatory authority be given serious implications for Australian commercial relationship between the the task of investigating, monitoring and democracy. “The ongoing instability of digital platform and the source of the reporting on how large digital platforms the Australian media sector will only news item. rank and display advertisements amplify these dangers,” MEAA warned. and news content. Other preliminary • MEAA supports mechanisms to better recommendations suggest ways to In MEAA’s 13-page submission in detect and address digital platforms strengthen merger laws. response to the ACCC preliminary striking arrangements that benefit report,279 MEAA said it supports an the digital platforms own commercial Additional preliminary recommendations overhaul of Australia’s communications interests at the expense of customers. deal with copyright, and take-down laws to ensure a level regulatory playing orders, and the review of existing, field for businesses that create and carry • MEAA is prima facie concerned by disparate media regulations. content. Without this, the status quo of the establishment of a regulatory GOOGLE AND FACEBOOK SHOULD NOT ARBITRATE WHAT IS QUALITY NEWS

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authority to actively monitor, to the major digital platforms that conduct and scrutiny (i.e. digital investigate and report on the ranking carry news content. This ought not be platforms that do not produce, curate of news and journalistic content by confused with proposals for further and fund news media content). MEAA digital platforms and the provision review of the conduct of news media notes however that significant work of referral services to news media organisations, especially where the has already been performed through businesses. The caveat to this concern agency charged with investigating the Convergence Review in 2012 is in instances where ranking is linked and determining complaints is a and 2013. That review persuasively to the digital platform’s commercial government agency. advanced the concept of platform benefit or other alleged impropriety. neutral regulation. MEAA is otherwise • MEAA supports proposals to concerned, as with ACCC preliminary • MEAA is otherwise concerned conduct a separate, independent recommendation 5, that such a review that the prospect of the regulation review by Government “to design might be pathway for additional involving value judgments about the a regulatory framework that is government encroachment into the inherent worthiness of news content. able to effectively and consistently conduct of news media organisations. Although disparate in their nature regulate the conduct of all entities MEAA will closely monitor the and application, there are codes of which perform comparable functions progress of this preliminary conduct, including MEAA’s Code in the production and delivery of recommendation. of Ethics, Australian Press Council content in Australia, including news standards, commercial television and journalistic content, whether • MEAA believes that much greater codes of practice and oversight they are publishers, broadcasters, effort is required by digital platforms mechanisms for public broadcasters other media businesses, or digital to act promptly in response to for consumers to ventilate their platforms”. MEAA strongly supports copyright owners’ requests to remove concerns and seek remedies. MEAA regulatory equality for all news media unauthorised content from their sites. supports the retention of these organisations, while noting (as the MEAA would wish to be consulted arrangements, although we would ACCC’s report has) that Australia’s about the development of any prefer common standards to be regulation of media organisations ‘mandatory standard’ that would apply developed for application across the is hopelessly fractured, out of date to digital platforms. media sector. As MEAA stated in its (especially with respect to digital submission to the Inquiry, we support entities) and enables free riders The ACCC will present its final report to the extension of regulatory standards to escape reasonable standards of the Government on June 3 2019.

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Then Treasurer Scott Morrison is congratulated by then Prime Minister after delivering the 2018 Budget speech Alex Ellinghausen | Fairfax Photos GOVERNMENT PUBLIC BROADCASTING t has been the most tumultuous is struggling due to the challenges of reported: “Savings from the ABC cuts year in the ABC’s history. From digital disruption — particularly for will be redirected to other spending the politicisation of the national audiences in rural, regional and remote measures within the communications broadcaster’s funding and a call Australia. and arts portfolio, according to the for the organisation to be sold budget papers, including $48.7 million Ioff, the imposition of unnecessary MEAA said280 the loss of $43 million for the commemoration of the 250th inquiries as favours for the support of over three years in funding to support anniversary of James Cook’s landing in Pauline Hanson’s One Nation for the news and current affairs, particularly Botany Bay.”281 Government’s media package, and a in regional Australia, is particularly crisis of leadership at the ABC. short-sighted (the funding was to MEAA Media director Katelin McInerney expire in 2019-20 and the ABC would said: “The [combined] potential $43 FUNDING CUTS have to re-bid for further funding. In million cut to dedicated news funding, The Federal Budget brought down on its pre-election Budget on April 2 2019 and the freezing of indexed funding at a Tuesday May 8 2018 revealed cuts of the government restored the funding cost of $84 million, are crippling blows $127 million from the funding of the for three years — see below), as the ABC to the ABC and follow years of under- ABC. “can and must” play a crucial role in funding by the Abbott and Turnbull providing high quality public interest Governments.” MEAA called the cuts “dangerous and journalism in the era of “fake news” irresponsible”, and added that the and social media platforms stripping The latest funding reduction would cuts presented grave implications revenue from commercial news media. amount to almost $340 million being for audiences seeking news and cut from the ABC’s base funding since information. MEAA said the cuts only What did Communications Minister 2014. weaken public broadcasting at the very Mitch Fifield do with the millions he time when commercial broadcasting stripped from the ABC? The Guardian This has had a significant impact on

62 | 2019 PRESS FREEDOM REPORT ABC news, on television drama, and on MEAA responded to the funding cuts than ever before, and the latest cut was radio programming, and there needs to by once again invoking “Hands Off especially vindictive. be a major reinvestment in the ABC by Our ABC”, a community and advocacy the federal government. “These funding campaign co-ordinated by the two “While we welcome Labor’s cuts have placed enormous stress upon unions that represent the vast bulk of commitment not to go ahead with the the ABC which, last night, was once employees at the ABC: MEAA and the funding freeze if elected at the next again being asked to do more with less,” Community and Public Sector Union. election, we will be looking for further McInerney said. The campaign’s goal is an editorially concrete pledges of increased funding independent ABC that is fully funded by from all political parties,” Murphy “The timing of these cuts could not the government and meets its charter as said. “We will also continue to press be worse: in the lead-up to a federal a comprehensive national broadcaster, all political parties to respect the election when strong journalism to that is resourced to tell Australian independence of the ABC and reinforce independently scrutinise politicians’ stories across multiple platforms, and the integrity of its charter to be the claims and counter claims will be positioned to take advantage of new national broadcaster for all Australians.” needed. It is becoming increasingly technology to retain its position as the difficult for the ABC to deliver original most trusted and reliable source of news The then ABC chairman investigative journalism and local and and entertainment in Australia. wrote an opinion piece on the issues regional newsgathering with these deep confronting the ABC.285 He said: “The cuts to its funding,” McInerney said. The implications of ongoing funding ABC is an organisation known intimately cuts were soon made clear. At a Senate to every Australian and about which every “The spate of highly politicised estimates hearing in May 23 2018, the one of us has an opinion. The letters assaults on public broadcasting by ABC’s chief finance officer revealed pages of newspapers contain a steady the Government in recent years fly that the broadcaster had shed 1012 jobs stream of bouquets and brickbats for in the face of calls made to restore since 2014. The Guardian reported: “A the public broadcaster. Yet according to funding. In February the Senate Select total of 939 employees or 829 full-time- pollsters, with around 80 percent support, Committee into the Future of Public equivalent have been made redundant the ABC is the most trusted media Interest Journalism recommended that in four years, including 205 as a result organisation in the country by a very wide the Government must ensure adequate of the closure of the ABC’s retail shops margin. It is one of the few organisations funding for the ABC and SBS to ensure and a further 73 vacant positions were to maintain trust when confidence in they meet their charter obligations closed. The ABC has been shedding institutions everywhere has declined. — particularly in rural and regional staff since the Coalition cut $254 services and fact-checking capacity,” million from the ABC budget in 2014. “The commercial television networks McInerney said. [Managing director Michelle] Guthrie, and some newspapers peddle an ever who has been in the position for just more urgent message that the ABC is “Right now, the ABC is already seeking over two years, has imposed several hurting their business and should be to cut 20 journalist positions in a restructures which have led to hundreds held back. They take delight in reviews proposed restructure, cuts that will hurt of staff being made redundant. A further into the broadcaster’s efficiency and its local newsrooms and in turn, starve 22 journalists will be made redundant business practices, hoping they will local communities of quality reporting this month.”282 coalesce into a full-blown revision of of news stories that matter to them. the ABC’s Charter that relegates the Every time the Government announces On June 12 2018, Labor promised it public broadcaster to a “market failure” these politically motivated assaults on would restore the $83.7 million cut by function limited to programming the ABC it is local communities that the Coalition. MEAA described283 the about fine arts, science, education or suffer.” promise as “a good first step” towards philosophy. This would likely spell the reversing the damage from a succession end for popular programming like Four MEAA Equity director Zoe Angus of funding cuts since 2014. Corners, Australian Story, Gruen or Sea warned: “These Federal Government Change because, the argument goes, cuts also represent a dangerous threat Responding to the Labor promise to these programs could be produced by to the creation of original Australian restore the ABC’s funding,284 MEAA commercial media and taxpayers would television production, particularly said: “The Media, Entertainment & Arts save millions. But this argument misses drama. It is this type of short-sighted Alliance welcomes the announcement two points,” Milne wrote. and devastating cuts to funding that from Opposition Leader has spurred the Make it Australian that a Labor government would not “First, the ABC’s existence is not campaign. The constant slashing of proceed with the funding indexation and never was based on a premise of funding by Governments endangers freeze which effectively cuts $83.7 market failure. Our Charter, enacted by the ABC’s ability to produce quality million from the ABC over three years legislation, has always required much Australian screen content and fulfil its from 2018-19. more of us. By fulfilling that Charter, important cultural role in Australian we provide Australians with distinctive storytelling. MEAA chief executive Paul Murphy content, media diversity, a strong said: “ABC executives have warned creative sector and more. Even better, “Even before last night’s Budget, more that the $84 million cut in last month’s the ABC costs each Australian half what than $250 million had been cut from the Budget cannot be absorbed through it cost 30 years ago. ABC since 2014. Over this same period, more efficiencies, but can only come the ABC’s commissioning budgets for from cuts to programming, services and “Second, the declining audiences adult drama and children’s content operational staff, such as journalists. reported by commercial media are not each dropped by 20 percent. Given their ABC news staff are already going and never have been the fault of the important cultural role, the ABC must be through another painful round of ABC. What has changed for all media properly funded and future funding must redundancies with 20 jobs to be axed is the arrival of the FAANGs — or be guaranteed so that productions can be when the cut was announced. Put Facebook, Amazon, Apple, Netflix and developed with certainty,” Angus said. simply, the ABC is doing more with less Google — with their mega-billion-dollar

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production budgets and global-scale The Budget also contained a budget $1 billion a year, could pay off economies that have upended business Department of Finance perspective on debt and would enhance, not diminish, the models the world over,” Milne said. ABC staffing levels. It was the ABC’s Australian media landscape.” intention to maintain staffing at 4180 On April 2 2019, in its pre-election for 2019-20 but the Department said There was no explanation of how the Budget, the Government decided it this would have to change saying the ABC would have any commercial value would extend the funding of the ABC’s ABC should employ 4130 people — a to a buyer if the government imposed “enhanced news measure” — the loss of 50 jobs.288 restrictions on the sale to protect rural funding had previously been under services, forcing any buyer to continue a cloud and was due to expire in the The Budget also saw a funding boost for operations that might lose money. coming year. The funding extension is SBS of $29.6 million over three years for worth $43.7 million over three years its TV, radio and online operations. Nobody rose from the federal council and would allow the ABC to continue to floor to speak against the motion, but support local news and current affairs PRIVATISING THE ABC Communications Minister Mitch Fifield services, particularly in regional areas. Amid the debate about funding the spoke from his position as a senior ABC appeared a sure sign that public minister to note that privatising the ABC In a statement286 in response to the broadcasting had simply become a was not government policy. Budget, the director of ABC news, political plaything for conservatives. analysis and investigations, Gaven The Liberal party’s federal council Senator Fifield told the meeting that he Morris, said of the extension of the meeting on June 16 2018 voted 2:1 to had made two appointments to the ABC funding: “It complements the $15 privatise the ABC. board — Minerals Council of Australia million a year investment we have made chair and Queensland in regional news. It allows us to create The Sydney Morning Herald reported: rural leader Georgina Somerset. jobs at a time when commercial news media are reducing services, particularly “The overwhelming vote at the party’s He also said the government was in regional Australia.” annual council in Sydney gained vocal amending the ABC’s governing act to support from conservative think-tank stipulate that it was “fair and balanced” ABC acting managing director Institute of Public Affairs, which said in its coverage and would force it to David Anderson said: “The program the company could be sold or given to disclose the names of staff earning more budget sustains critical roles in ABC Australians who already own it. The vote than $200,000 a year. Investigations and the Specialist came in a debate on Saturday where about Reporting Team; provides camera 110 council delegates, representing Liberal No other members spoke on the motion operators in Broome, the Alice and branches from across the country, also and it was carried on a show of hands the Hunter; funds the Parramatta, voted for an efficiency review into SBS. from delegates, with roughly twice as many and Ipswich bureaux and voting in favour of the motion as those who regional VJs in Bunbury, Newcastle “Council delegate Mitchell Collier, the voted against. No count was taken. Senator and Renmark; and enables capital federal vice president of the Young Fifield voted against the motion. investment in linking equipment and Liberals, said he had enjoyed ABC other technology. programs such as Bananas in Pyjamas Asked about the vote later, Treasurer during his childhood but said there was no Scott Morrison said there was no plan to “The extension of this program for economic case to keep the broadcaster in sell the ABC and the Liberal council did another three years at $43.7 million is public hands. not decide government policy. recognition of the important work the national broadcaster does in delivering “High sentimentality is no justification “We listen and we consult with our more tailored news to communities, in for preserving the status quo,” Mr Collier members, all the time, as we do with all investing in specialist resources that told the meeting, which included cabinet Australians,” Mr Morrison said. explain complex policy and political ministers, Liberal state premiers and top issues to the public and in providing a party officials. “But I should be very clear: the national audience for news from across government has no plans to privatise the the country.287 The motion said: “That federal council ABC.” calls for the full privatisation of the The ABC statement went on to say: “On Australian Broadcasting Corporation, Mr Morrison quipped that some the negative side, despite extensive except for services into regional areas that Australians “may think the Labor Party requests from the ABC, the Budget are not commercially viable.” already owns it” but the government had papers have locked in the $83.7 million no plans to sell the ABC… pause in indexation funding flagged The vote has no binding power over in last year’s budget. This is on top of Prime Minister Malcolm Turnbull, federal [Institute of Public Affairs] research the $254 million the ABC has had to cabinet or federal MPs, who set policy in fellow Chris Berg said the question should absorb in efficiency cuts over the past their party room meetings in Canberra. be about the best way to privatise the five years. ABC, with options being a sharemarket But Mr Collier won the vote on the floor of float, a sale to a media mogul or the IPA’s “The cut comes into effect at the start the council. preferred option is for ownership to be of the next financial year, with a first- transferred to ABC staff or Australian year impact of $14.6 million. Given our “There are several ways we could taxpayers. 289 tight fiscal envelope, meeting the costs privatise the ABC — we could sell it to will have to involve tough decisions on a media mogul, a media organisation, As public broadcasters, both the ABC staffing and services. Our commitment the government could sell it on the stock and SBS are already owned by Australian is to consult with staff in considering market,” he told the meeting. taxpayers. Communications Minister options. I will keep you informed on Mitch Fifield is reportedly a member of this front.” “Privatising it would save the federal the Institute of Public Affairs.290

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Former ABC chair Justin Milne, former ABC managing director and former Prime Minister Malcolm Turnbull on August 15 2018 Alex Ellinghausen, Fairfax Photos

LEADERSHIP CRISIS redundancies, unprecedented political defender of the ABC’s independence The next key event in the ABC during attacks on the ABC’s independence and and of its editorial staff. This includes the year would propel the ABC into a low staff morale. refocusing daily journalism away from profound crisis precisely at a time when lifestyle content and ‘clickbait’ and strong, united leadership was vital in “It is no secret the ABC is caught in the back towards news and current affairs,” the face of the funding cuts and other pincers — between the need to invest in McInerney said. assaults on the public broadcaster. an ever-changing media landscape, and a decline in real funding to historically “Importantly, the ABC board must also On Monday September 24 2018 Justin low levels,” Ms McInerney said. “The be prepared to back the staff of the Milne announced that ABC managing next managing director of the ABC will ABC and the integrity of the ABC as a director Michelle Guthrie had been face real challenges, including how respected publicly owned institution in sacked — two years and four months to restore the trust and confidence the face of unrelenting political attacks. into her five-year term. of staff by ending the “Hunger Games” processes, casualisation, and “We feel it is time for a new vision and MEAA responded to the news by outsourcing which in four years have new direction for the ABC to emerge, calling291 for next managing director of seen more than 1000 experienced allowing journalists and content the ABC to be someone prepared to fight workers leave the organisation. makers to get on with the job of serving for better funding and independence, audiences with the content they trust.” and to champion public broadcasting “They must have a clear vision for in a hostile political environment. “The the ABC and be able to articulate However, the leadership crisis at departure of Michelle Guthrie follows the direction they want to take the the ABC worsened on Wednesday a tumultuous period for the ABC, organisation. They must be a vocal September 26 when allegations and MEAA members hope that new public advocate for the ABC, who were raised suggesting Milne had leadership… could be a circuit breaker is prepared to tackle head-on the compromised the ABC’s independence for the organisation.” historically low levels of ABC funding — allegations he denied. MEAA with meaningful engagement with responded to the news, saying292: The director of MEAA Media, Katelin the Federal Government. They must McInerney, said Ms Guthrie’s two- be 100 percent committed to public ABC chairman Justin Milne should heed and-a-half years as managing director broadcasting and to fend off any the decision of his board and stand would be remembered for historically attempts to privatise the ABC either aside today to allow a comprehensive, low levels of funding culminating in the directly or by stealth. They must be a independent inquiry to go ahead into loss of $84 million announced in the champion for quality Australian content alleged political interference in the 2018-19 federal budget, hundreds of and specialist content and a staunch running of the ABC.

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Further revelations today that Mr Milne urged former managing director Michelle Guthrie to ‘shoot’ the network’s political editor, , make his position as chairman completely untenable.

On top of earlier reports that Mr Milne also told Ms Guthrie to sack the ABC’s economics editor, , indicates a pattern of overt political interference in the running of the ABC that is in clear breach of the ABC charter and the role of the chairperson.

Mr Milne seems to have misunderstood that the role of the ABC is as a public broadcaster, not a mouthpiece for the government of the day. He must stand aside immediately, and these issues must be investigated fully by an independent inquiry. ABC Sydney staff protest over allegations of political interference The allegations sparked an overwhelming response from ABC staff. MEAA noted that the reports In Tasmania the resolution read: “ABC Murphy said the announcement of a alleged Milne had sought to interfere MEAA staff in the Tasmanian newsroom departmental inquiry into the affair was in editorial and staffing decisions join calls for the Chairman Justin Milne inadequate. “A departmental inquiry is at the ABC. “MEAA believes that, to stand aside while an independent simply not good enough and the public if true, they would indicate Milne inquiry takes place. We are dismayed cannot have faith it will be anything has no understanding of editorial that the chairman of our own board but a whitewash,” he said. “The only independence, proper complaints appears to be exerting political pressure way for this to be fully investigated handling processes, or the appropriate behind closed doors. Mr Milne’s position is through a Senate inquiry, held in distance a board chair needs to keep as chairman of the board is untenable the open and with the power to force from staffing matters.”293 if he does not support the ABC’s fierce witnesses to testify. The government pursuit of journalism without political must co-operate with a Senate inquiry, Staff meetings were held at ABC offices interference.” and [Communications Minister] Senator with the following resolutions294 passed Fifield, Prime Minister Morrison and by staff. At Ultimo, ABC staff said: “We The following day, on September 27 and former Prime Minister Turnbull should call for an independent inquiry into just four days after Guthrie was sacked, all be called to give evidence about the allegations that have been made in Milne resigned. how deeply they were involved in these the media today, and for the chairman attempts to interfere with the editorial to stand down in the interim while ALLEGATIONS OF POLITICAL decisions of the ABC.” the investigation takes place. The idea INTERFERENCE behind the investigation is to secure the The leadership crisis led MEAA to Murphy said the leadership crisis had editorial independence of the ABC from subsequently call for a comprehensive exacerbated the climate of instability top to bottom.” public inquiry. “Staff members made and uncertainty for all ABC staff, who very clear yesterday their disgust with should be commended for continuing At ABC Melbourne the meeting resolved: the targeting of journalists behind the to work professionally in extremely “ABC staff in Melbourne are calling for scenes from those who are supposed to difficult circumstances. “MEAA the chairman Justin Milne to stand aside uphold the ABC’s independence. This members and supporters will continue while an independent inquiry takes is not a one-off attack on the ABC’s to stand up for an independent ABC. place. The ABC is, and always has been, a independence, but is the culmination We thank all who supported our action fiercely independent news organisation of years of inappropriate external yesterday, and our ongoing campaign to and it is of no concern to our program meddling in the ABC’s affairs.”295 safeguard Australia’s journalism.”296 makers or journalists whether they are hated by any government. We are MEAA chief executive Paul Murphy A review by Mike Mrdak, secretary of dismayed that the chairman of our own said: “Mr Milne seems to have the Department of Communications board is exerting political pressure misunderstood that the role of the and the Arts, into the events at the ABC behind closed doors. Mr Milne’s position ABC is as a public broadcaster, not a looked at the role of Milne and Guthrie as chairman of the board is untenable mouthpiece for the government of the as well as the ABC board members in if he does not support the ABC’s fierce day. The job of the chair of the ABC the lead-up to the leadership crisis.297 pursuit of journalism without political is to defend the independence of the Public service news website The interference.” broadcaster from political attacks, not Mandarin reported:298 “Communications to act as a messenger or do a hatchet Minister Mitch Fifield tabled the Mrdak The ABC staff passed the job because the government is unhappy review in the Senate today, highlighting following resolution: “This meeting with the coverage it is receiving. ABC that Milne and Guthrie both told his calls on the chairman to publicly journalists cannot do their jobs of department head “there was no request acknowledge if the political interference reporting fairly and without fear if they or suggestion” by any minister that in the reported email is true and, if so, do not have confidence that the board led the national broadcaster’s former immediately resign from his position.” and the chairman have their backs.” chair to demand senior journalists be

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In its opening statement303 to a public hearing of the Senate Environment and Communications References Committee as part of its inquiry into allegations of political interference in the ABC, MEAA expressed grave concerns with the conduct of the former ABC chair, Mr Milne, at the time his views concerning senior ABC editorial staff were publicly aired, shortly before his and Ms Guthrie’s departure from the corporation. MEAA said:

MEAA and its members abhor selective and/or politically motivated interventions by senior ABC personnel. We are dismayed by members of the political class continually undermining the ABC by sniping, carping and punishing the ABC, and by encouraging dissent towards the corporation, ordering meritless inquiries, cutting funds and, on occasion, stacking its board. For the record, MEAA submits that complaints concerning sacrificed to appease an increasingly managing director would be followed editorial staff or perceived institutional unfriendly government. by an example of direct government bias should be aired and considered in an interference in the ABC’s board orderly and dispassionate manner where “Of course, the former chair’s stated selection process — and not for the first the principles of procedural fairness reasoning for very strongly suggesting time. are observed. There should be no room that Guthrie fire senior reporters Emma for senior ABC officers to prosecute Alberici and Andrew Probyn was that On February 25 2019 Minister for complaints outside of such processes. the government clearly disliked them Communications Mitch Fifield and some of their recent reporting, and Prime Minister Scott Morrison In our submission, we didn’t seek to based on clear public statements and announced that former print media further canvass the events of September letters of complaint from ministers, executive and more recently Network last year. We believe that this inquiry including former prime minister Ten panel show member should focus on the systems that enabled Malcolm Turnbull and Fifield himself. would be recommended to the those events to occur and on measures Governor-General for appointment as to ensure that board selection processes “Mrdak was looking at how Milne the new chair of the ABC board. are sound and are not polluted by communicated with Guthrie around political interference. We concentrated a series of complaints from the The government’s move to override our comments on terms of reference government, regarding Alberici and the legislated independent panel (c), (d) and (e). For the reasons set out Probyn, the decision by to stop selection process was reportedly in our submission, we make a total of running the Hottest 100 countdown on because the recruitment firm 12 recommendations, and those are in Australia Day, and edgy political satire appointed during the five-month three main areas: firstly, strengthening televised on Tonightly. hiatus since Justin Milne’s resignation the independent selection process for had not found a woman to make the board positions, removing political “A timeline of events included in the short list of three. Morrison said: considerations from them and making report demonstrates that each case “It is true that she was not one of them more transparent; secondly, involved both interventions by the board those who have been independently replacing ad hoc and seemingly endless and complaints from the government recommended, and I can confirm that efficiency reviews with set, fixed term which reflected identical concerns. The the independent recommendations did reviews based on consistent criteria and former chair maintains he was making not include a female candidate.”300 introducing independent external advice his views known to the managing to guide triennial funding decisions; and, director, not giving a direction, while Her appointment came “after Senate thirdly, reviewing the existing internal Guthrie sees it the other way around.” estimates heard… that the company complaints handling processes. brought in to run the recruitment “…As to whether Guthrie’s sacking was process was paid more than $160,000 On the first point around board a direct result of the Alberici and Probyn to whittle down the list of potential appointments, we believe the initiative arguments, Mrdak simply observes a names.”301 to establish an independent selection difference of opinion between Milne’s process some years ago for the ABC claim that her resistance to his strong MEAA chief executive Paul Murphy board was a good one, reflecting the need interventions over editorial and staffing said: “There is an independent panel for the public to have confidence that matters was not the main reason for the selection process in legislation which board members would be selected based board’s decision to cut her loose, and the Government has yet again ignored, on merit and be capable of defending the the former MD’s impression that it was as they have on very many occasions in independence and integrity of their public a major factor.”299 making appointments to the ABC board. broadcaster. Multiple recent examples of That’s not a reflection on Ita Buttrose the minister bypassing that process have, The vacuum created by the departure but it’s an important point we’ve been in our submission, produced a board not of the ABC chair and the ABC raising.”302 best fit to fulfil its duties.

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The perception of political favouritism without first providing allegations to subsequent allegations of interference in any appointment undermines public the editorial staff member concerned. in the ABC’s editorial processes by confidence, and, to be honest, the MEAA submits that the ABC’s complaints board chairman Justin Milne. perception we have is that the minister of system must inform relevant staff of the day views the independent selection editorial complaints without fail. In “Recommendations which improve process as little more than an obstacle addition, the person whose behaviour is the independence and transparency of course to be overcome before making complained about must have the ability to board appointments, add more media the appointment that they desire. In respond directly to the allegation before experience to the board and protect the our submission, legislation should be a preliminary or final decision is made. ABC’s staff from political interference amended so that no future appointments Anything less is a denial of natural justice are all sensible and welcome. can be made outside of proper and actually serves to undermine the consideration and recommendation by integrity of the complaints process itself.” “Particularly important is the final the independent nomination panel. recommendation for stable funding over On April 1 2019, the Senate political the budget cycle of the ABC ‘as a guard We also make recommendations interference inquiry made a series of against political interference’. We urge regarding board composition, specifically recommendations: the swift and full implementation of the to extend the ban on former political Committee’s recommendations. officeholders being appointed to the • Amend the Australian Broadcasting board and to bar them from appointment Corporation Act 1983 to define the “That would be an important step to the independent nomination panel. We term “consult” to ensure that the towards ensuring the chaos and also recommend specifying that at least Prime Minister provides the Leader of dysfunction of last year is not half the board should have experience the Opposition with information about repeated.”305 in journalism or broadcasting, and for the outcome of the Nomination Panel the creation also of an additional staff recruitment process and any alternate INQUIRIES elected board position. nominee, and the opportunity to The ABC has been subjected to discuss a proposed recommendation inquiries that appeared to be largely On funding, we note that since 2014 for appointment. politically motivated or spurred by the ABC has faced funding cuts of more • Amend the election criteria for rivalries with other media outlets. At than $350 million and the resulting loss the appointment of non-executive least two were initiated at the behest of hundreds of jobs. On one analysis, Directors) Determination 2013 to: of Pauline Hanson’s One Nation party. referred to in our submission, Australia • allow for applicants with substantial The first was the introduction of the invests 34 percent less per person in public experience or knowledge in the field of Fair and Balanced Bill — the legislation broadcasting than is the average figure for education; has stalled in the Senate306 after a comparable democracies. Our submission • emphasise the need to demonstrate standing committee inquiry was split notes that the ABC has been subject to an understanding of the role of the along party lines with the Greens and no less than 16 efficiency reviews in the fourth estate and independent media Labor dissenting with the Government last 20 years. These reviews are often in democracy; and representatives’ final report.307 perceived as being driven by political • require no less than two non- considerations. executive members of the ABC Board The other One Nation-provoked inquiry to demonstrate substantial experience was into the national broadcasters’ No-one argues the ABC should not be or knowledge in the media industry. businesses in comparison to their subject to efficiency reviews. Like all • Amend the Act to set out the selection commercial rivals. The Australian public institutions, it must be accountable criteria for the Nomination Panel Financial Review said: “The then- for the use of public money. But reviews and enhance the transparency and set up an expert should be on a regular cycle, rather than accountability of the work of the panel to run an inquiry into public being announced ad hoc, and should be Nomination Panel. broadcasting in March as part of a deal conducted on consistent and transparent • Amend the Act to require the Prime with Pauline Hanson’s One Nation to criteria. With regard to triennial funding, Minister to table a statement advising get Communications Minister Mitch in our submission the engagement of the Parliament on the extent and Fifield’s media reform package through independent advisers to assist government outcome of consultations with the the Senate.”308 in assessing appropriate funding levels Leader of the Opposition. would be of great benefit. • The Board should formally review On March 29 2018 the Communications these events, including the findings of Minister launched the inquiry into “And finally, in relation to the complaints this inquiry, and report to the Minister “the competitive neutrality of the processes, we have fielded several on lessons learned and steps taken to national broadcasters”. The inquiry complaints from ABC personnel about guard against a similar occurrence in was predicated on the premise: the manner in which the ABC’s Audience future. “Competitive neutrality principles and Consumer Affairs unit deals with • The Government should acknowledge provide that government business complaints. The ACA fielded 26,850 the benefit and desirability of stable activities should not enjoy net complaints in 2017. It examines all funding for the ABC, not only for ABC competitive advantages simply by virtue manner of complaints, from subtitling planning purposes but also as a guard of their public sector ownership.”309 errors to claims of bias in reporting. Of against political interference, and those complaints, 120 were upheld in commit to stable funding for the ABC In its submission to the competitive 2017. On occasion, it receives multiple over each budget cycle.304 neutrality inquiry, MEAA said: “MEAA complaints from business and community note that this Inquiry is being conducted organisations that allege an ingrained Commenting on the report, MEAA chief in an environment of overt hostility bias against their interests. A number of executive Paul Murphy said: “It must towards the ABC and to a lesser extent, cases where such bias has been alleged be remembered that this inquiry was SBS. In our view, this is an inquiry in have seen the ACA arrive at preliminary called following the sacking of ABC search of an ill-articulated (or non- and sometimes final findings about bias managing director Michelle Guthrie and existent) problem. This Inquiry follows

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that competitive neutrality principles, which have largely fallen into disuse in the past 10 years, are a virtual Trojan horse through which the Government can mount further attacks on the ABC and its employees.

“Meanwhile, the progressive failure by government to modernise broadcasting regulation to suit the digital era continues. For as long as this situation prevails, all producers of content in Australia will be fighting with one hand tied behind their back, revenues will continue to fall and the alarming trend of job losses will continue.

The inquiry handed down its report on December 12 2018.311

“The report concluded: “Given their market shares, and other factors, this inquiry considers the National Broadcasters are not causing significant competitive distortions beyond the public interest. But it did see the need Senator Pauline Hanson in the Senate for greater transparency from them.”312 Alex Ellinghausen, Fairfax Photos The Conversation reported: “The outcome will be disappointing to News Corp in particular which has been the ABC and SBS Efficiency Study of MEAA concluded its submission by highly critical of the ABC’s expansion 2014, approximately $380 million in saying: “MEAA supports full public in online publishing. The former funding cuts to the ABC and $20 million accountability for public broadcasters. Fairfax organisation, now taken over for SBS since 2014 and is taking place in Their statutory origins form the basis by Nine, also complained about the conjunction with a further ABC efficiency upon which Australians can trust and competition eating into the market review announced by the Government in test that the monies they receive and of commercial media groups. The May 2018… the ventures they participate in — are in report said: “Competitive neutrality furtherance of their public missions. seeks to ensure that competition is “We further note that this Inquiry is not distorted by public entities taking occurring before two other inquiries “The ABC and SBS have made admirable inappropriate advantage of government have reported their findings: Treasury’s headway in the first decade of the ownership. It is not intended to prevent Review of the Commonwealth digital media era. It now appears that public entities from competing, nor to Government’s Competitive Neutrality this is a source of unrest for commercial relieve discomfort from competitive Policy, which commenced in 2017; broadcasters, who are looking to processes which are bringing benefits and the ACCC’s Inquiry into Digital preserve income streams, especially to consumers as they rapidly adopt and Platforms. advertising income. enjoy new services.”

“It strikes us as premature that this “As we pointed out earlier, the national The Conversation report continued: Inquiry should proceed while the broadcasters are not to blame for “The inquiry found the broadcasters’ foundations of competitive neutrality diminishing advertising returns. The business activities in order; they were policy are being reviewed and before ABC receives no advertising revenue ‘abiding by a best endeavours approach the main threats to the Australian and SBS’s share is relatively modest. to competitive neutrality’. It suggested media sector’s plurality, if not survival Our public broadcasters are efficient and there should be some improvements in — digital platforms such as Facebook they are dedicated to meeting audience transparency and internal procedures.”313 and Google and unregulated content expectations and demands, including providers including Netflix, Amazon and making quality content available on a The Australian Financial Review said: — has properly been assessed. variety of platforms. “ABC and SBS could be forced to give more detail on how and where they “Finally, we note the existence of “It would be absurd if the national spend more their taxpayer-funded the Productivity Commission’s broadcasters were constrained from budgets, under recommendations Competitive Neutrality Complaints making use of the technological tools made by a competitive neutrality Office (AGCNCO). This office is that encourage public access to their inquiry into public broadcasting…. charged with fielding complaints and platforms. There is simply no public utility The inquiry, which cost approximately launching investigations into whether in doing so. It would impair the value and $495,000, concluded SBS and ABC were public entities have adhered to the purpose of these enterprises’ delivery of meeting their competitive neutrality Competition Principles Agreement. excellent news and entertainment. obligations, but they needed to be more The by-passing of this office in transparent in their business activities favour of this inquiry is puzzling and “With all due respect to the panel and report on how their operations concerning…”310 members on this inquiry, MEAA believe related to their respective charters.”314

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and diversity of voices in what is already one of the most concentrated media markets in the world.

Marcus Strom, president of MEAA Media, said: “Today’s takeover announcement is the inevitable result of the Coalition’s Government’s short- sighted and ill-conceived changes to media ownership laws that were always going to result in less media diversity. With ongoing inquiries into the independence and long-term viability of quality journalism under way, the ACCC [Australian Competition and Consumer Commission] must block this takeover.

“This takeover reduces media diversity. It threatens the editorial Hugh Marks of independence of great news rooms Nine David Rowe at Nine, The Sydney Morning Herald, Fairfax Photos The Age, Canberra Times, Illawarra Mercury, Newcastle Herald, Macquarie Media and more — right around the country. It harms the ability of an independent media to scrutinise and MEDIA OWNERSHIP investigate the powerful, threatens the functioning of a healthy democracy, undermines the quality journalism that our communities rely on for Farewell Fairfax information,” Strom said.

ne of the Australian media websites The Sydney Morning Herald, “Nine and Fairfax must explain how industry’s best known and The Age, The Australian Financial they intend to defend the integrity of most respected journalism Review, BrisbaneTimes.com.au and independent quality journalism in any disappeared as the WAToday.com.au); combined entity.” result of a takeover that • rural, regional and agricultural Ofurther reduced media diversity in newspaper and digital media business MEAA demanded that all existing Australia. It was the culmination of Australian Community Media (ACM) employment conditions and entitlements the Government’s misguided media which includes more than 160 regional are protected and retained for all workers ownership reforms and the shakeout publications and community-based at both companies; and that existing of media assets arising from digital websites include The Canberra Times, industrial agreements are respected. disruption and transformation. Almost Newcastle Herald, The Examiner, a year later, the ramifications of the The Border Mail, The Courier and Strom said: “Any further cuts to takeover are still being felt, not least for Illawarra Mercury, approximately editorial journalism at Nine and Fairfax editorial staff at the combined entity 130 community-based websites plus would bite into the muscle, bone and wondering about ongoing job security as agricultural publications that include soul of the newsroom. The proposed the takeover is “bedded down”. The Land, Queensland Country Life, and savings of $50 million in two years Stock and Land; should come from trimmings to bloated On February 8 1841 “the founder of the • New Zealand multimedia business executive salaries and from any back- family dynasty, John Fairfax, acquired Stuff that includes The Dominion office rationalisation.” co-ownership of the then Sydney Post, The Press and The Sunday Star- Herald with his business partner, Times in a portfolio of regional and MEAA said that the ACCC couldn’t Charles Kemp for the princely sum of community newspapers, magazines seriously consider the proposed merger £10,000.”315 and agricultural publications; until has finished its digital platforms • a 50 percent in subscription video on- inquiry, which then Treasurer Scott On July 26 2018 Nine Entertainment Co demand business Stan; and Morrison called for in December 2017. announced a takeover of Fairfax Media • a 54.5 percent stake in Macquarie If the merger were to go ahead, it would that would dissolve the Fairfax name. Media operating a nationwide network reduce media diversity and potentially of stations comprising 3AW and undermine the editorial integrity of Fairfax owned: Talking Lifestyle 1278 in Melbourne; Fairfax’s mastheads. • 60 percent of ASX-listed real estate 2GB and Talking Lifestyle 954 in and technology services business Sydney; 4BC and Talking Lifestyle 882 In addition, MEAA called for Nine Domain Holdings; in Brisbane; and 6PR in Perth. and Fairfax to guarantee that the • metropolitan newspapers, digital Fairfax Media Charter of Editorial media, transactions and events When the takeover was announced Independence317 would be retained, business Australian Metro Media MEAA issued a statement316 saying it and that there would be no job losses (including the leading newspapers and would be bad for Australian democracy under any merger.

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MEAA encapsulated its demands into remain unresolved about how editorial “Even if we assume the best of three key areas when it wrote to both independence would be protected intentions from Nine management, the Nine CEO Hugh Marks and the following the proposed takeover of there will be immediate pressure to Fairfax CEO Greg Hywood that day: Fairfax. merge newsroom functions to cut costs. And Nine has made no guarantees about • Job security — preserving current MEAA said Nine chairman the future of the regional mastheads, levels of employment in the merged and his board must commit in writing portraying them in some interviews as organisation. to the full wording and intent of the unwanted assets. • Enterprise agreement — honouring the Fairfax charter of editorial independence. current Fairfax EBA. Nine must also guarantee not to close or “The ACCC should hit the pause • Editorial independence — adopting reduce the editorial footprint of Fairfax’s button on this takeover until it has the Fairfax Media Charter of Editorial network of regional and suburban guarantees on editorial independence, Independence. publications, which serve communities the future of regional and rural around Australia. mastheads and has time to consider Later in the day, Marks responded: the recommendations of its own digital MEAA Media federal president Marcus media inquiry,” he said. • On job security, Marks said: “We are… Strom said Nine had a tradition of great continuing to grow opportunities journalism, but without a commitment Later that day the ACCC chairman for journalists’ employment across in writing, Fairfax staff had every right Rod Sims said the commission would broadcast in regional and in digital to be concerned about whether the scrutinise the takeover. He was and that commitment now includes charter would be adopted if the takeover reported as saying: “Once we get the radio and print so more growth went ahead. submissions from the merger parties, and expanded potential for quality we have given ourselves 12 weeks, content.” “The Fairfax charter of independence, which is about as long as we ever • On the EBA, Marks said: “Fairfax established in 1991 when the company take, to go through this in very great employees will remain employed was facing an earlier takeover, explicitly detail… So all I can say is we are going under the current terms and prohibits media owners from dictating to look at it extremely carefully. It’s a conditions of their respective or interfering in the editorial decisions very, very important issue… Ours is a enterprise agreements and that will or journalism of its publications, competition view, and so competition continue.” even if they may reflect poorly on the in advertising, competition as it • On editorial independence, Marks proprietor or advertisers. affects consumers, but one way it said: “We have been very clear Nine, affects consumers is the quality and its board and management are “It has allowed the journalists of diversity of their media. We will take committed to the charter of editorial Fairfax to pursue investigations into that into account, because it’s part of independence and already understand powerful influences, sometimes to the what you are getting here, the quality the responsibilities of independence detriment of commercial interests, such of news and the breadth of news,” for journalists as we respect that in as the series of stories into banking Sims said. our existing business.” misbehaviour which resulted in a royal commission, and articles about “Of course the merger parties say MEAA responded the following day, July corporate wage theft,” Strom said. there is no competition issues, they 27 2018, saying it was not satisfied with always do. Every merger I have ever the response regarding job security. “Until Peter Costello, who would come across, the merger parties said “We will continue to push for solid be chair of the new merged entity, ‘why do you bother us, there is just no undertakings and guarantees. On the formally signs a binding document that competition issues’. Well, we are going EBA, Marks’ response is encouraging commits Nine to adopting the charter to look very carefully at this. We are and MEAA acknowledges Nine’s of independence, our members will going to take it very seriously and there statement about maintaining Fairfax continue to be concerned and sceptical is not much more I can say until we get terms and conditions. However, we are about how genuine Nine’s commitment going,” Sims said.320 unclear as to how long this commitment to editorial independence really is.” will last and MEAA will press for clear On August 1 2018, in correspondence and reliable answers, and what this The future of the charter of with MEAA, Nine again failed to give means for current EBA negotiations. On independence was just one of satisfactory answers on editorial the charter of editorial independence, several outstanding concerns about independence. MEAA wrote to Nine MEAA notes and welcomes Marks’ the proposed takeover, Strom said. CEO Hugh Marks on July 27 seeking response, but will continue to seek a “We will continue to push for solid clarification of the duration of Nine’s written guarantee that the full wording undertakings and guarantees on commitment to observe the terms and and intent of the current charter will job security, and we need clear conditions of current Fairfax enterprise be adopted by the enlarged company and reliable answers on Nine’s bargaining agreements (Marks said should the takeover go ahead.”318 commitment to maintaining current Nine would comply “for as long as they employment terms and conditions remain in effect”). MEAA also said On July 30 2018 MEAA issued a beyond the current enterprise that it “may be appropriate to discuss statement319 saying that key questions agreements at Fairfax,” Strom said. matters in more detail”. THE FUTURE OF THE CHARTER OF EDITORIAL INDEPENDENCE IS A CONCERN

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But Marks ruled out discussions with not fit that high-growth model may be felt compelled to send a submission to MEAA “as the deal is yet to complete. better serviced by being part of some the ACCC,” Mr Murphy said. “The ACCC Our expectation is that this will happen other environment.”325 must seriously take these views into around December 2018”. account when considering whether to On August 10 2018 MEAA said the allow the takeover to proceed. MEAA said: “It is disappointing that takeover of Fairfax Media by Nine Mr Marks has now ruled out further should undergo a far more detailed “This is a takeover that will change discussions. MEAA remains open to examination by the ACCC than that the face of Australia’s media forever meeting with Nine.”321 currently proposed. MEAA wrote to by creating a cross-platform giant that the heads of Nine and Fairfax, and Rod will reach every corner of our nation Meanwhile, ACCC chairman Rod Sims Sims, urging the companies to seek and which will control newspapers and said he expected a 12-week “long a formal authorisation of the merger websites, television and radio stations review” of the takeover that will make from the ACCC — a far more rigorous in our two largest cities. a “very careful study” of the impacts process than the current 12-week it will have, including the effect on informal merger review. “A takeover of “There is no question that the Nine diversity of views”. “Our lens is: what this nature, with its implications for takeover of Fairfax will reduce diversity does the reduction in competition mean media diversity, editorial independence in Australia’s media, which is already for diversity? What are competitive and the cloud hanging over the Fairfax one of the most concentrated in the forces doing to diversity? We will look at portfolio of regional publications and democratic world. quality, price and quantity,” Sims said.322 websites, requires a more robust and transparent process than an informal “We also hold concerns about what it On August 3 2018 a report said the merger review. Nine and Fairfax will mean for independent journalism, takeover of Fairfax Media by Nine would should submit themselves to detailed for the future of Fairfax’s metropolitan further concentrate the Australian questioning about this takeover. They and 160 community, regional and rural media which, data shows, was already should explain what their takeover will publications around Australia, and for one of the more concentrated media mean for all their media businesses and the jobs and conditions of thousands of industries in the world.323 what it will mean for consumers, the Fairfax employees,” Murphy said audience who rely on the information ACCC chair Rod Sims made additional and entertainment provided by those “It is disappointing that Nine did comments about the upcoming businesses. And they should be willing not agree to submit the takeover to takeover review. The findings of to explain what it will mean for the more rigorous scrutiny by seeking the Commission’s inquiry into thousands of affected employees.” formal authorisation from the ACCC. digital platforms will help inform This would have ensured greater its long review, he said. “The merger On August 16 2018 Nine CEO Hugh transparency, and forced Nine parties [Nine and Fairfax], can see Marks said Nine and Fairfax had lodged to address many of the concerns no competition issues here. We will a detailed submission with the ACCC.326 expressed in these public submissions. see what unfolds when we begin our On September 7 2018 submissions to Nevertheless, the volume of public assessments. We have indicated a 12- the ACCC’s formal review of the Nine submissions and the concerns expressed week phase-one timeline so our review Entertainment Co takeover of Fairfax in them are real and cannot be ignored will be a thorough one.” Media closed at 5pm. To that time, by the ACCC, which should act by 1147 submissions had been made from rejecting the takeover in its current MEAA welcomed this as from day one people using a special online MEAA web form.” we called on the ACCC to “hit pause” site tool. The submissions made by the until it had completed that inquiry. public were overwhelmingly opposed to MEAA said that if the takeover is the takeover. allowed to go ahead it should only be “This will be a fascinating review given with strict enforceable undertakings, the considerable changes affecting MEAA’s submission327 urged the ACCC to including a robust process to traditional media in recent years,” Sims oppose the merger as it contravenes the guarantee editorial independence, the said. “Significantly in this matter, we Australian Competition and Consumer maintenance of separate Nine and will have the benefit of considerable Law. MEAA argued the merger would Fairfax newsrooms, and commitments insight into these changes from our substantially lessen competition and to continue existing employment digital platforms inquiry.324 diversity in the media industry, is anti- arrangements and all existing Fairfax democratic, and any public benefit is publications for at least three years. On August 6 2018 MEAA said the outweighed by the public detriment. future of Fairfax’s regional newspapers On November 8 2018 the Australian in any merged Nine-Fairfax business MEAA chief executive Paul Murphy Competition and Consumer remained far from certain, especially in said328 the 1147 submissions passed Commission announced it would light of some of Nine CEO Hugh Marks’ on to the ACCC by MEAA far exceeded greenlight the takeover of Fairfax Media comments. When he was asked about expectations. “It’s a sign of how much by Nine. MEAA responded to the news the future of the regionals, Marks stated this takeover is against the public in a statement329 saying the decision that “those other businesses that may interest that more than 1100 people by the Australian Competition and THIS IS A TAKEOVER THAT WILL CREATE A CROSS-PLATFORM GIANT

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Consumer Commission to greenlight regional areas, and maintain existing the backbone of the business, the takeover is a body-blow to media wages, entitlements and employment acknowledged for their award-winning diversity, and the forerunner to future conditions.” public interest journalism. It is vital mega-deals that will reduce coverage of that the journalism produced by Fairfax matters of public and national interest MEAA urged the ACCC to block the journalists is maintained and properly and do untold harm to media jobs. merger on the grounds it would resourced, and so Nine must commit to substantially lessen competition and observing and respecting the workplace MEAA said that despite the ACCC’s diversity in the media industry, is anti- agreements that are currently in place. tough talk about protecting competition democratic, and any public benefit is and assuring the community that the outweighed by the public detriment. 3 There are still uncertainties merger would not simply be waved surrounding what will happen to through, the commission had ignored MEAA also noted that since July 2018, Fairfax businesses. The fate of more the concerns raised by MEAA and when the Nine-Fairfax merger was than 160 Fairfax regional and rural hundreds of Fairfax and Nine readers announced, the share values and market publications and websites is also under and viewers. The merger had been capitalisation of both companies had a cloud. approved without any conditions being fallen by at least 30 percent, with the attached about editorial independence, combined value of the merged company On December 10 2018 the Nine takeover protection of jobs or employment down by more than $1.3 billion to less of Fairfax Media was completed with conditions, or continued operation of than $3 billion. the merged business known as Nine — existing mastheads. 177 years after John Fairfax began his The federal president of MEAA Media, news business. Nine began to eradicate The ACCC had found that the merger Marcus Strom, said: “The public should the Fairfax name from the combined “will likely reduce competition”, but not ask: if the merger isn’t good for media business. substantially lessen competition in any diversity, public interest journalism or market. MEAA said it did not accept the shareholders, what or who is it good Then on the following day — a fortnight ACCC’s view that the growth in online for? To avoid a repeat of mergers that before Christmas — 26 journalists and news by smaller media companies “now devalue journalism, destroy jobs and other staff at Nine-owned (formerly provide some degree of competitive reduce scrutiny of those in power, Fairfax-owned) Allure Media were told constraint”. Australia must restore strong media they were redundant.330 diversity protections as a matter of MEAA argued that none of the new urgency. Any such test must have the At the beginning of March 2019, as entrants to the Australian media market public interest and media plurality at its forewarned by Hugh Marks, Nine put the have the capacity to conduct journalism heart.” Fairfax regional newspaper businesses at the scale of Nine, Fairfax, ABC, held by the Australian Community NewsCorp or SevenWest. Despite the On December 2 2018 Nine announced Media (ACM) business division up for ACCC recognising this, it had chosen 144 roles would be made redundant, sale. MEAA continued to have concerns not to place any conditions on the affecting 92 employees, due to about what a change of ACM group merger. duplicated jobs and vacancies that ownership would mean for independent would not be filled. journalism, for the future of Fairfax’s In the statement MEAA chief executive 160 community, regional and rural Paul Murphy said the merger was the On December 7 2018 MEAA wrote: publications around Australia, and inevitable result of the removal by After providing quality independent for the jobs and conditions of Fairfax the government of the two-out-of- journalism to Australian audiences for regional employees.331 three media ownership rule in 2017. more than 185 years, the Fairfax brand “The ACCC seems to have neither the will disappear on Monday following As with the Nine takeover, MEAA called will nor the regulatory tools to block completion of the takeover of the business on the potential new owners to invest transactions like this,” he said. by Nine Entertainment Co. in reporting and newsrooms at a time when maintaining already reduced “As we saw with the 2011 merger to MEAA will be closely monitoring the journalist numbers on the ground is form Seven West Media, media mergers situation as the Fairfax mastheads come pivotal to maintaining scrutiny of local of this scale result in endless cost- under the Nine banner. authorities and business interests in an cutting to increase ‘synergies’, far election year. fewer journalists and far less local and When the takeover was first announced, national public interest journalism, we sought three commitments from As such, MEAA’s demands remained the while also wiping billions of dollars of Nine’s management, and these remain same of any new owners of the ACM value from the company. outstanding issues in the wake of Nine’s group of newspapers that was sought takeover: from Nine CEO Hugh Marks when the “The likely outcome of Nine’s takeover takeover was first announced: of Fairfax will be the same. 1 Nine’s chairman Peter Costello, the board of directors and Nine’s CEO • Job security — preserving current “Given the ACCC’s failure to take the High Marks must commit to and levels of employment. concerns raised by MEAA and the public sign the Fairfax Charter of Editorial • Enterprise agreements — honouring into account, we will be making a robust Independence that all owners of Fairfax the current Fairfax enterprise case to the new owners of Fairfax to sign have signed up to over the past 30 bargaining agreements. a new charter of editorial independence, years. • Editorial independence — committing guarantee there will be no closures to the Fairfax Media Charter of of newsrooms or titles, especially in 2 Fairfax editorial staff are Editorial Independence.

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face persecution based on one or more Convention grounds. This covers both ASYLUM SEEKERS the refugee’s country of origin and third countries. Given practical difficulties EAA has been a long-term on business and politics, Boochani was in both the processing and settlement campaigner against the subject to constant surveillance by the of refugees in Nauru and PNG and strict media blackouts, Iranian authorities.” concerns over the rigour of their refugee secrecy and harsh anti- status determination processes, it has whistleblower legislation In February 2013, the offices of Werya been argued that offshore processing Mthat governs not only the detention in Ilam were raided and ransacked could amount to refoulement. centres on Manus Island and Nauru, but by Islamic Revolutionary Guards.335 asylum seeker policy in general. Boochani was not in the office at the “In addition, it has been argued that time of the raid but was in Tehran. offshore processing may constitute a We find these deliberate attempts to Eleven of his colleagues were arrested, penalty in breach of Article 31 of the suppress reporting about the treatment six were subsequently imprisoned.336 Convention, which prohibits imposing of asylum seekers and the conditions Boochani went into hiding. penalties based on a refugee’s mode of the centres to be an affront to press of arrival. Similarly, it could amount freedom. PEN wrote in a report on Boochani’s to expulsion in breach of Article 32, case: “During his three months in which provides that refugees shall not As the 2016 press freedom report hiding, several colleagues advised be expelled save on grounds of national published by MEAA said: “We have Boochani that he was at risk of arrest security or defence.”344 already had years of refusal by the and interrogation. Having been current government to be open about interrogated and warned previously Boochani has been adopted and its activities relating to asylum seekers. about his writing and work teaching recognised by PEN International as Requests for information are met with Kurdish culture and language, and a journalist and writer imprisoned a blanket refusal to discuss ‘on-water having signed an undertaking that he and persecuted by Australia and matters’. would not continue this activity, he is designated by the organisation found himself in grave danger.”337 as a PEN Prisoner of Conscience. “Similarly, questions about what According to PEN’s Caselist, “Boochani happens in asylum seeker detention Fearing for his safety, Boochani left has faced harassment for reporting centres have been met with silence, Iran on May 13 2013, making his way to to the Australian media and other , and even buck-passing Indonesia.338 organisations on conditions inside the questions to foreign governments. Last detention centre and human rights year this approach was reinforced by He attempted to leave but the first boat abuses alleged to be taking place there. brutal legislation: the Border Force he was on sank. In July 2013 he made He reports being the target of beatings Act now carries a two year jail term a second attempt to leave Indonesia as a direct result of his reporting.345 if “entrusted personnel” disclose when the boat he was on with 75 “protected” information.”332 other people was intercepted by the “PEN considers that, in effect, Boochani .339 Boochani is marooned on Manus Island and But as Guardian Australia reporter immediately requested asylum “as was that his indefinite state of limbo has Ben Doherty wrote in the same report: his right under Article 1 of the 1951 compounded his trauma, and amounts “For years, Australian journalists have Convention Relating to the Status of to cruel, inhuman or degrading noisily and proudly resisted political Refugees”.340 Australia is a party to the treatment which is prohibited under efforts to restrict them in their work. Convention “and its 1967 Protocol, international law, as affirmed in the But they must continue to oppose the which defines a refugee as a person who United Nations Convention against suppression of free reportage, on issues has a well-founded fear of persecution Torture and Other Cruel, Inhuman or of asylum and all others.”333 for reasons of race, religion, nationality, Degrading Treatment or Punishment, to membership of a particular social group which Australia is a state party. [PEN] is MEAA continues to support journalist or political opinion.”341 continuing to call for him to be allowed and author Behrouz Boochani, 36, a to enter Australia to seek asylum Kurdish writer, journalist and film- Boochani and his fellow asylum seekers there.”346 maker who continues to be detained by were initially detained on Christmas Australia on Manus Island, Papua New Island for one month before being Boochani has been declared an honorary Guinea. forcibly transferred to the Manus member of PEN Melbourne and PEN Island detention centre in Papua New Norway.347 He has been shortlisted in Boochani was born in Ilam city in west Guinea on August 27 2013 as part of the journalism category for the 2017 Iran in 1983. He graduated from Tarbiat Australia’s Pacific Solution II, known Index on Censorship’s Freedom of Madares University in Tehran with a as Operation Sovereign Borders. He Expression Awards.348 masters’ degree in political geography has been imprisoned on Manus since and geopolitics. August 2013.342 MEAA believes that his continued detention undermines Australia’s The London-based freedom of He has subsequently been interviewed credibility as a leader for press freedom expression association of writers PEN by the UNHCR and found to be a across the region. International reported334 that “in genuine refugee.343 The Australian his native Iran, Boochani worked as Parliamentary Library writes: In the six years that the Australian a journalist for several newspapers, “The primary obligation under the authorities have detained him, Boochani including national dailies Qanoon, [Convention Relating to the Status of has courageously continued to work, Kasbokar and Etemad, and the Kurdish- Refugees] is that of non-refoulement — writing for publications in Australia language monthly magazine Werya that is, refugees must not be expelled and overseas, tirelessly reporting on the (also spelled Varia). Due to his focus or returned to places where they would conditions on Manus Island, while also

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2017, Boochani won the Amnesty International Australia media award in the print, online and multimedia category for his work last year for the Guardian and the Saturday Paper.354

MEAA remains deeply concerned for Boochani’s welfare and safety — particularly the longer he remains on Manus. The success of his book and his status as a journalist have made him a target of the Manus authorities; a danger that has only increased with his rising profile.

In November 2017 MEAA formally complained355 to the Australian and PNG prime ministers about the singling out and deliberate targeting by PNG police of Boochani. He was detained by PNG police at the Manus Island Regional Processing Centre.

MEAA believed that comments by PNG police show Boochani was being deliberately targeted for his journalism and his detention in handcuffs amounted to an outrageous attack on press freedom.

Boochani was likely selected for this special treatment because of his journalism reporting on the situation on Manus. The determination of PNG police officers from the outset to find “the journalist” suggests the officers Author and journalist intended to disrupt and muzzle any Behrouz Bouchani live reporting of the activities of the Hoda Afshar PNG police while they conducted their operation inside the Centre, and that by getting a working journalist helping Australian-based journalists attend either of the premier screenings removed from the scene of the police cover the situation there. of his documentary held at the Sydney action, media coverage of the event or London Film Festivals.”351 would be minimal. In early 2017, MEAA co-ordinated an international open letter to then-Prime His lauded book, No Friend but the MEAA chief executive Paul Murphy Minister Malcolm Turnbull, under the Mountains: Writing from Manus said at the time: “For years now, a veil campaign slogan Bring Them Here, Prison (Picador) published in late July of secrecy has cloaked every aspect of calling for Boochani, along with two 2018, is an extraordinary account of the government’s asylum seeker policy. other Iranians — actor Mehdi Savari and his experience of the Manus island The role of the media is to hold the cartoonist Eaten Fish — to be resettled offshore detention system. In the powerful to account and to scrutinise in Australia, which was signed by winning citation, the judges wrote: what they do. Behrouz Boochani is a dozens of journalists, writers, actors, “Altogether, this is a demanding work former magazine editor and publisher. artists and international organisations. of significant achievement. No Friend His reports for various Australian media Boochani is the only one of the three But the Mountains is a literary triumph, outlets have finally given us a glimpse men to still be held on Manus Island.349 devastating and transcendent.”352 into the conditions on Manus faced by refugees. His reporting has been In December 2017, MEAA has supported He used his mobile phone to write exemplary and has been recognised with Behrouz’s efforts to be recognised as an the book which, in January 2019, an Amnesty International Australia accredited journalist and assisted him in won Victorian Prize for Literature, Media Award. receiving his International Federation of the richest of its kind in Australia. Journalists press card.350 Boochani also claimed the award for “The actions and statements of PNG non-fiction.353 Boochani wrote the book police confirm that Boochani was Boochani is undeniably talented. In as text messages on his phone, sending targeted during the police operation on 2017, he co-directed a film that he shot them, sometimes through several Manus. That is a clear assault on press on mobile phone, titled Chauka, Please intermediaries, to the academic Omid freedom,” Murphy said. Tell Us The Time, which was selected for Tofighian for translation into English. screening at numerous film festivals. In its 2017 letter, MEAA has called on “Denied travel documents, and without He has also written for many Australian the two prime ministers to ensure that a visa, Boochani was been unable to and overseas media outlets. In November those engaged in the outrageous assault

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on press freedom on Manus Island be Manus authorities; a danger that has reminded of their obligations to protect only increased with his rising profile. journalists and working media covering important news stories on Manus As Australian journalists, writers, Island, and observe their obligations academics and readers, we extend a towards freedom of expression and welcome to Behrouz Boochani. We press freedom. regard him as a valuable member of the contemporary Australian literary “Boochani remains at high risk. His community. He had the courage to stand continued coverage of Kurdish and up for the rights of his people in Iran, and Iranian politics, published in Kurdish in the past six years, he has borne witness newspapers, means that he would be to the trials of his fellow detainees, and at risk of imprisonment should he advocated for their freedom on Manus return to Iran… although Boochani Island. We join with him in advocating for was accorded refugee status by PNG justice for all those detained on Manus. immigration authorities in April 2016, remaining on PNG is not a viable We call on the Australian government to option, as he and the other men allow Behrouz Boochani into our country, stranded on PNG have genuine and where he can continue to work safely as well-founded concerns about their a journalist and writer. We also urge that safety.”356 he be offered a pathway to permanent residency. We will all be enriched by this. On April 1 2019 MEAA began co- ordinating a new campaign calling MEAA chief executive Paul Murphy for the to said Boochani’s safety and welfare had resettle Boochani in Australia.357 The deteriorated since the publication of initial signatories of an open letter the book, and the case for releasing him urging Boochani’s release was signed from Manus Island was now urgent. by Nobel Prize for Literature winner J.M. Coetzee, prominent journalists “Behrouz has effectively become a Tasmanian Parliament House Peter Greste, Kerry O’Brien, Tracey marked man since the fame that his Spicer, Kate McClymont and Quentin book has brought him,” Murphy said. Dempster, and writers Tom Keneally, “In November 2017, he was targeted n October 2018, the Speaker of Michelle de Kretser, Alexis Wright, and arrested by Manus authorities Tasmania’s House of Assembly Alice Pung, Christos Tsiolkas, Andy during a protest by asylum seekers. He Sue Hickey issued new rules Griffiths, and Kate Grenville. is now constantly threatened and we for journalists reporting on the have grave concerns for his safety while parliament. The letter said: he remains on Manus Island.” I The new rules for media, which were We, the undersigned, write this this letter Peter Greste, now spokesman for the introduced without consultation, as Australian journalists, writers, editors, Alliance for Journalists’ Freedom and included: publishers, academics, and lovers of the UNESCO Chair in Journalism and • Journalists “may not linger” in literature, to call for our colleague and Communication at the University of selected corridors and “may not seek fellow award-winning journalist and Queensland who spent more than to engage members in conversation” author, Behrouz Boochani to be allowed a year in an Egyptian prison while • Media “should make an appointment to enter Australia… reporting for Al-Jazeera in 2015, said by telephone” if they wish to speak to Boochani had courageously worked as a politician In the six years that the Australian a journalist chronicling life on Manus • Reporters are allowed to “transit authorities have detained him, Boochani Island for publications in Australia around the building unescorted to has courageously continued to work, and overseas, while also helping areas the media are permitted” writing for publications in Australia Australian-based journalists cover the • Areas where journalists can walk and overseas, tirelessly reporting on the situation there. unimpeded include “the media room” conditions on Manus Island, while also and “bistro” helping Australian-based journalists “Behrouz represents the best of • Photos of “unparliamentary behaviour” cover the situation there. journalism in his brave reporting which by parliamentarians are banned has revealed the unpleasant reality of • Images “cannot be digitally enhanced, In December 2017, the International the ongoing incarceration of hundreds touched up or altered in any form” Federation of Journalists recognised of asylum seekers on Manus Island,” • Photos “are only permitted during the Boochani’s work as a legitimate he said. “But Behrouz’s own detention first 10 minutes of Question Time”.360 journalist and granted him an IFJ press brings shame upon our nation, and card. As Australian journalists, we undermines Australia’s credibility as The ABC reported the scale and impact are acutely aware that his continued a leader for press freedom across the of the new rules: detention undermines Australia’s Asia-Pacific region.”358 credibility as a leader for press freedom Under the guidelines, the media is across the region. In addition to seeking the prohibited form “lingering in the corridors resettlement of Behrouz Boochani to in the vicinity” of the House of Assembly We are deeply concerned for Behrouz a safe destination, the campaign aims Chamber, Committee Rooms, the Atrium, Boochani’s welfare and safety. The to “bring more attention to all subject Ministerial Offices, party rooms or success of his book and his status as a to Australia’s immigration detention individual rooms of Members of the House journalist have made him a target of the regime”. 359 of Assembly.

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and photography by stifling and/or censoring what can be photographed and when, impose barriers to curtail MPs and the media from interacting and exchanging information, and prevent the media from reporting on the activities and behaviour of the elected politicians in the People’s House.

The role of the media is to scrutinise and report on the powerful. It is a role that is vital to maintaining a healthy functioning democracy by ensuring the media is able to report legitimate news stories in the public interest. These new rules represent the most egregious attack on the work of a parliamentary press gallery in this country and are not worthy of an Australian parliament.

REPORTING [MEAA urges] you to immediately rescind these new rules and restore the ability of journalists to do their vital work of DEMOCRACY informing Tasmanian communities about what their Parliamentarians are doing in their name. “In these areas, the media may not seek MEAA Tasmania president A. Mark to engage members in conversation,” the Thomas said: “Everybody knows that A week later, the ABC reported that the document states. the hour of Question Time, is really an Speaker had subsequently convened open time for media for the opposition “a roundtable meeting with media “As a general rule, members of the media parties to ask questions of the organisations where she announced wishing to speak with a member should government, to hold them to account… the most controversial of the media make an appointment by telephone.” The perception of it could be that it is guidelines, which stopped journalists an attempt to stymie democracy. That’s from lingering in corridors, had The rule effectively means journalists the media’s job: to ask questions of already been dropped. After further are banned from talking to MPs in most members of parliament.”362 discussion with journalists, editors, areas of the Tasmanian Parliament. The photographers and opposition parties, guidelines also prohibit the media filming On October 18 2018 MEAA wrote to Ms Hickey also agreed to abandon the anywhere in the building, without the the Speaker of Tasmania’s House of other contentious guidelines on a six- permission of the Speaker. Assembly condemning her proposed month trial basis. Restrictions could be new media guidelines.363 MEAA wrote: re-introduced if there are complaints What can be filmed inside the House of about media behaviour.364 Assembly even when permitted is also Dear Madam Speaker, limited. The ABC said: “Under the new rules, [We] write to express the great concern of media can photograph and film the The guidelines are the first time the Media, Entertainment & Arts Alliance entire proceedings of Parliament, and restrictions on Parliamentary coverage (MEAA), the professional association interviews can be conducted on the front and interactions with politicians have for Australia’s journalists, over the new steps of Parliament House, the atrium been documented and distributed to guidelines for journalists working at and other agreed places. Southern Cross, media outlets, with previous limitations Tasmania’s Parliament issued by you. WIN News, the ABC, the Mercury and on reporters and camera crews Fairfax were all present at the meeting communicated through sporadic emails or The guidelines represent an outrageous and agreed to the updated guidelines, memoranda. assault on press freedom, undermine the which will be published on Wednesday.” role of the media in carrying out legitimate Media can only film or take photos in the scrutiny of the work of the state’s MEAA’s Thomas responded to the news first 10 minutes of Question Time, and elected representatives, and hinder the by telling the ABC: “Any restriction cannot document MPs not engaged in dissemination of news and information to on the Tasmania media was really a debate, interjections from other members, the people of Tasmania. restriction on what the Tasmanian or the public gallery. people could learn about what is The rules effectively ban journalists from happening in Parliament every day. It’s ”In case of general disorder or un- working in many areas of the Parliament, a good result for the media, it’s a good parliamentary behaviour by a member/ impede the work of journalists as result for the Tasmanian Parliament, members on the floor of the House, coverage they seek to carry out their duties and therefore it is a good result for the must revert to the Speaker or Chair.”361 responsibilities, prohibit media filming Tasmanian community.”365

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TRAUMA The ABC program The Law Report368 A recent case has highlighted the said: “When four-year-old Darcey importance of media employers Freeman’s body was pulled out of providing staff with appropriate support Melbourne’s Yarra River — after she was and training when they cover traumatic thrown off a bridge by her father — an incidents. Age journalist was one of the first at the scene. Later, she told everyone in the The Conversation noted: “A landmark newsroom: “I’m done, I can’t do this ruling by an Australian court is expected anymore. I have had enough of death to have international consequences for and destruction.” newsrooms, with media companies on notice they face large compensation The journalist was transferred to the claims if they fail to take care of sports desk. The Conversation reported: journalists who regularly cover traumatic “But a senior editor later persuaded her, events. The Victorian County Court against her wishes, to cover the Supreme accepted the potential for psychological Court where she was exposed to detailed, damage on those whose work requires graphic accounts of horrific crimes…”369 them to report on traumatic events, including violent crimes.”366 However, her mental condition worsened covering murder trials, In February 2019, it was reported that including having to cover the case a former journalist with The Age had involving Darcey Freeman’s father. been awarded $180,000 in damages for post-traumatic stress, anxiety The journalist alleged The Age: and depression.367 The journalist had • had no system in place to enable her reported on some of the city’s gangland to deal with the trauma of her work; war and a particularly distressing death • failed to provide support and training of a child involved in a custody dispute. in covering traumatic events, including from qualified peers; An Australian Association Press (AAP) • did not intervene when she and others report of the case said the journalist had complained; and worked in the role for almost a decade • transferred her to court reporting after until taking voluntary redundancy in she had complained of being unable 2013 and covered major stories including to cope with trauma experienced from the death of four-year-old Darcey previous crime reporting. Freeman, who was thrown off the West Gate Bridge by her father. The journalist “The Age contested whether the had also covered gangland murders, road journalist was actually suffering from deaths, fires and police shootings. post-traumatic stress. It argued that even condition. The judge said: “I am if a peer-support program had been in satisfied that the culture at The Age was On February 22 2019, County Court place it would not have made a material such that the reporting of psychological judge Chris O’Neill said on awarding difference to the journalist’s experience. symptoms and distress was not the damages to the journalist: “She encouraged. This was for a number of received no training in how to deal “Further, The Age denied it knew reasons. No doubt, it was a competitive with the trauma of the incidents she or should have known there was a environment and a stressful workplace. was required to report upon. The things foreseeable risk of psychological injury To express symptoms of, for example, she observed when she was required to its journalists and simultaneously anxiety or depression was likely to be to cover a story were graphic and argued that the plaintiff knew ‘by seen as a weakness and an indication an traumatic, being close to scenes where, reason of her work she was at high risk employee was not able to carry out the in particular, children had been killed, of foreseeable injury’.”370 assigned work. In an environment where often violently, would be obviously redundancies were a regular event, distressing.” The Conversation also reported: “Judge it was not an easy thing to be open Chris O’Neill found the journalist’s and frank about the trauma to which The court was told during a three- evidence more compelling than the younger journalists were exposed and week hearing that the journalist had media company’s, even though the their reaction to it.”372 repeatedly sought better support and psychological injury she had suffered debriefing from her superiors after put her at a disadvantage when being Judge O’Neill said: “She should covering stories. The day she reported cross-examined in court.”371 never have been requested, let alone on the death of Darcey Freeman in 2009, persuaded, to undertake work as a court she requested to be transferred away The workplace environment played reporter given her complaints to The from crime reporting. a particular role in the journalist’s Age after the Darcey Freeman incident.”

78 | 2019 PRESS FREEDOM REPORT The judge added that it should have “What is alarming from the evidence that there are important lessons for been obvious to management that provided to Judge O’Neill is the extent media organisations. “Scientific, something was wrong and there was to which these attitudes still hold sway evidence-based studies about trauma a “clear indication” an underlying in contemporary newsrooms. [The and resilience in news professionals psychological disorder was emerging, journalist] said that as a crime reporter have been accumulating for nearly 20 the AAP report said. Despite this, she worked in a ‘blokey environment’ years. So this ruling is a wake-up call. It repeated complaints to editors and where the implicit message was says that news executives have enough human resources personnel failed to ‘toughen up, princess’.”373 information to be legally responsible lead to training or support, the court for providing journalists with trauma- was told. The case is a timely reminder of the awareness training and support.” need for media outlets to support The Conversation in its coverage of their staff and to monitor workplace MEAA works with the Dart Centre375 the case said: “Historically, the idea health and safety issues particularly which is dedicated to informed, of journalists suing their employers for journalists reporting on traumatic innovative and ethical news reporting for occupational PTSD was unheard incidents. Some media employers on violence, conflict and tragedy. While of. Newsroom culture dictated that have been proactive in this area, even DART provides ample resources for journalists did whatever was asked of providing peer-support programs. journalists, the need for employers to them, including intrusions on grieving provide proper resources for their staff relatives, or ‘death knocks’ as they are Ben Shapiro, executive director of is highlighted by this case. known. Doing these was intrinsic to the the DART Centre for Journalism and so-called ‘school of hard knocks’. Cadet Trauma, a project of the Columbia CYBERBULLYING journalists were blooded in the newsroom University Graduate School of MEAA is disappointed that more has by their ability to do these tasks… Journalism, told the ABC’s Law Report374 not been done to tackle cyberbullying,

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particularly following the report376 of without reference to facts or objectivity, for ensuring journalist safety, news the Senate’s Legal and Constitutional and often with too great a willingness organizations have an important Affairs References Committee inquiry to allow debate to become personal, role to play in journalist protection,” into the Adequacy of existing offences abusive and threatening. [International Press Institute] executive in the Commonwealth Criminal Code director Barbara Trionfi said. “This and of state and territory criminal laws The fact that many social media resource we join in launching today will go to capture cyberbullying. users depend upon and even thrive a long way toward ensuring the adopting on disseminating abuse, often behind of best practices to promote a safe MEAA made a lengthy and detailed the veil of anonymity, leaves many working environment for journalists...” submission377 to the inquiry, as did journalists exposed to quite horrifying Women in Media. MEAA also appeared cyberbullying. The News Organisations Safety Self- at the inquiry’s public hearings. The Assessment comprises a brief set of key details are contained in the MEAA 2018 Journalists are, by their nature and questions and guideline notes that should press freedom report.378 by the requirements of responsible prompt a constructive conversation around journalism, accessible to the public. safety best practices and encourage As MEAA noted in the 2018 report, MEAA They usually engage openly, using their practical and effective ways to advance members are required to engage with the own names, in order to make social such practices. The Self-Assessment public in numerous ways. Initially, this is media the tool for increasing audience supports news organizations to identify through contacting sources and recording responsiveness – exactly the sort of and better understand their own them for a news story. increase in “eyeballs” on news stories weaknesses and strengths in relation to the that media employers demand of their security of all individuals working for them The dissemination of news through journalist employees. exposed to danger, including freelancers. publishing or broadcasting a story is a second method of engagement. In the As outlined above, the nature of The resource pays special attention past, this sometimes gave rise to follow journalists’ contact with their audience to gender issues, mental health care, up contact with the audience responding on digital media platforms, including via digital security needs and working with to stories via mail or telephone. It could social media, makes them particularly freelancers and fixers, aspects which are even be as simple as talkback radio or vulnerable to cyberbullying. As part of often neglected in organizational policy letters to the editor. But the development their employment they must openly and protocols. The Self-Assessment of digital social media platforms has engage with the audience which, in includes links to relevant articles, reports, introduced a new significant way for return, may hurl abuse and threats guides and other existing resources, as journalists and the audience to interact. at them – again, often under the well as a basic glossary. Social media has allowed individuals to protection of anonymity. speak directly to journalists. The organisations involved in this MEAA believes that our members, as initiative recognize the crucial role that This change has been embraced by workers in the media industry, should news managers, publishers, executive media employers who now insist that be able to work free from cyberbullying. directors and editors play in advancing a their employees use social media MEAA will be stepping up efforts with culture of safety, and have come together platforms to promote and engage media employers to ensure employers in partnership to create and promote this with audiences in order to build traffic create and operate policies to protect useful tool. around digital news stories. Indeed, their staff, ensure they work in a safe the number of hits on a news story and healthy environment, that training “Although this is a resource primarily has become a new and even somewhat and counselling regarding with dealing aimed at news management, we oppressive key performance indicator with cyberbullying is made available, encourage anyone in the news chain to imposed on journalists (on top of and that employers take steps to deal use these guidelines to learn more about demands to file more words, with fewer with cyberbullies on behalf of their their organization’s safety provisions errors, for immediate publication on employees. and start a productive conversation the media outlet’s web site in advance around safety issues,” Elisabet Cantenys, or publishing or broadcasting on NEWSROOM SAFETY SELF- executive director of the ACOS Alliance, traditional media). ASSESSMENT said. “Keeping safety protocols relevant On April 3 2019 several press freedom is a major challenge for most news In many cases, journalists are being groups launched a newsroom self- organizations. Here we offer a practical compelled by their employers to express assessment tool kit379 that will help and useful tool, which we hope will take opinions regarding news events, the news outlets review and improve their us a step closer towards embedding a news stories they are working on and current safety practices and protocols; culture of safety.” other news stories by developed by their the resource pays special attention to media employer – all with the aim of gender issues, mental health care and “Aside from the moral imperative to protect interacting with an online audience, digital security.380 all the individuals who contribute to a news driving engagement and building traffic product,” Cantenys continued, “Investing numbers to impress advertisers. “Safety of journalists is an important facet in a robust safety policy and protocols can of press freedom. Until journalists feel save an organization from the financial loss It is the unfortunate nature of social secure, their ability to carry out quality, and reputational damage of a crisis that media that discourse can quickly investigative coverage is restricted. While could have been prevented, or could have dissolve into heated discussion, often states bear the primary responsibility been carefully managed.”381 SOCIAL MEDIA MAKES JOURNALISTS VULNERABLE TO CYBERBULLYING

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a sorry tale of ongoing government indifference, and an apparent IMPUNITY unwillingness to thoroughly investigate the murder of Australian journalists.

NINE AUSTRALIAN The impunity over the murder of journalists is a growing global issue. For Australia to join the ranks of JOURNALISTS MURDERED nations that treats journalist lives so cheaply should be a source of shame, THE AUSTRALIAN FEDERAL POLICE (AFP) INVESTIGATION particularly as Unesco reports that many other countries have stepped up their INTO THE MURDER OF THE BALIBO FIVE RAN FOR 1868 DAYS, efforts to stamp out impunity and bring FROM SEPTEMBER 9 2009 TO OCTOBER 21 2014. DESPITE THE the killers of journalists to justice. INCIDENT BEING DESCRIBED AS A WAR CRIME, THE AFP SAID To do nothing, as has been the case to date, means that their killers are getting THAT DURING THOSE FIVE YEARS IT “HAD NOT INTERACTED away with murder and sends a signal WITH THE INDONESIAN NATIONAL POLICE” AND DID NOT that the Australian Government and its agencies treat the lives of Australian SEEK ANY CO-OPERATION FROM INDONESIA. THE journalists as counting for less than OFFICER WHO ALLEGEDLY ORDERED THE KILLINGS IS other Australians. PROMINENT IN INDONESIAN POLITICS TO THIS DAY. THE BALIBO FIVE Journalists Brian Peters, Malcolm Rennie, Tony Stewart, Gary Cunningham and Greg Shackleton were murdered by n November 2 2017 — public needs to know. Information is Indonesian armed forces in Balibo, East Unesco’s International Day quintessential in order to make the best Timor, on October 16 1975. to End Impunity for Crimes decisions in their lives, be it economic, Against Journalists — the social or political. This access to It is alleged they were killed on the global body reported that reliable and quality information is the orders of Captain who Obetween 2006 and 2016, 930 journalists very cornerstone of democracy, good commanded the Kopassus (Indonesian were killed for bringing news and governance, and effective institutions.”383 Special Forces) Team “Susi” that attacked information to the public. Over that Balibo in a combined operation with time, a conviction has been achieved in Australia has nine cases of journalists regular troops of Rajawali Company B. less than one in 10 cases.382 who have been killed with impunity. All but one of the cases involve a journalist In 2007 Brian Peters’ sister, Maureen, “This impunity emboldens the working in a conflict zone overseas. The through her lawyers, invoked a perpetrators of the crimes and at the sole domestic case, of Juanita Nielsen, provision of the Coroners Act 1980 same time has a chilling effect on remains unsolved despite considerable (NSW) to ask for a coronial inquest society including journalists themselves. attempts by police forces to find her based upon Brian’s residence in New Impunity breeds impunity and feeds body and to bring homicide charges South Wales.384 into a vicious cycle… These figures do against her murderers. not include the many more journalists On November 16 2007, NSW Deputy who on a daily basis suffer from non- The remaining eight cases, the bulk Coroner Dorelle Pinch brought down fatal attacks, including torture, enforced of which date back to the Indonesian a finding in her inquest into the death disappearances, arbitrary detention, invasion of East Timor in 1975, are of Peters. intimidation and harassment in both conflict and non-conflict situations. The Balibo Five, from left to right - Gary Cunningham, died aged 27; Brian Peters, died Furthermore, there are specific risks faced by women journalists including aged 24; Malcolm Rennie, died aged 29; Greg Shackleton, died aged 29; Tony Stewart, sexual attacks.” died aged 21.

“When attacks on journalists remain unpunished, a very negative message is sent that reporting the “embarrassing truth” or “unwanted opinions” will get ordinary people in trouble. Furthermore, society loses confidence in its own judiciary system which is meant to protect everyone from attacks on their rights. Perpetrators of crimes against journalists are thus emboldened when they realise they can attack their targets without ever facing justice.

“Society as a whole suffers from impunity. The kind of news that gets “silenced” is exactly the kind that the

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intelligence review, we can see that they even knew who led the attack.”389

It took a further two years after the inquest, on September 9 2009, before the Australian Federal Police finally announced that it would conduct a war crimes investigation into the deaths of the five journalists. Never before has there been an Australian Commonwealth prosecution for war crimes under the Geneva Conventions Act.390

Over the course of what would turn out to be five long years, little was ever disclosed about how the AFP war crimes investigation was being conducted, what lines of questioning were being pursued, what evidence had been gathered or whether the families were being kept informed of the AFP’s progress. Journalist Greg Shackleton paints the The AFP appeared to be particularly slow Australian flag on the in its activities around the war crime house in Balibo investigation. For instance, in October 13 2014, just three days before the 39th anniversary of the war crime and five Pinch found “the journalists were Commander in Timor, and then to years into the AFP’s investigation, the surrendering to the Indonesian forces Captain Yosfiah.” During the inquest an AFP answered a question asked about the by throwing their arms in the air and “eyewitness identified Yunus Yosfiah progress of the investigation in a Senate protesting their status as ‘Australians’ from a photograph projected on screen estimates committee. The question had and ‘journalists’ when the order came at the coronial inquest. The Coroner been asked in an estimates hearing seven from Captain Yunus Yosfiah of the found that the journalists could not months earlier and it had taken that long Indonesian Special Forces that they be have been and were not mistaken for for the Senate to receive the response killed. It was only after they were killed combatants. They clearly identified from the AFP. that they were dressed in old Portuguese themselves as Australians and as army uniforms, photographed to show journalists. They were unarmed and The AFP advised the Senate committee they were active participants in the dressed in civilian clothes. They all had that “an active investigation” into hostilities and then burnt to conceal they their hands raised in the universally the murder of the Balibo Five was were killed by AK-47 weapons which recognised gesture of surrender. They still ongoing. “The AFP says the were not used by the local forces.385 were killed in a matter of minutes.” 387 investigation has ‘multiple phases’ and results are still forthcoming from Her conclusion was expressed as Pinch stated “that she intended to inquiries overseas.” follows: refer the matter to the Commonwealth Attorney-General for consideration of But in a remarkable revelation, the Brian Raymond Peters, in the company potential breaches of division 268 of AFP stated that despite five years of an of fellow journalists Gary James the Commonwealth Criminal Code” and “active investigation” with “multiple Cunningham, Malcolm Harvie Rennie, she recommended that the killings be phases” that was still awaiting results Gregory John Shackleton and Anthony investigated by the Australian Federal from inquiries overseas, it had “not John Stewart, collectively known as ‘the Police (AFP) as a war crime as the sought any co-operation from Indonesia Balibo Five’, died at Balibo in Timor- journalists “were killed deliberately on and has not interacted with the Leste on 16 October 1975 from wounds orders given by the [Indonesian] field Indonesian National Police”.391 sustained when he was shot and/or commander, Captain Yunus Yosfiah.”388 stabbed deliberately, and not in the heat And then, just six days later, on October of battle, by members of the Indonesian A statement in the British Parliament, 21 2014 came a severe blow to those Special Forces, including Christoforus (Brian Peters and Malcolm Rennie hoping for justice. The Australian da Silva and Captain Yunus Yosfiah on were British citizens) responded to the Federal Police announced it was the orders of Captain Yosfiah, to prevent Coroner’s findings: “The Australian abandoning its five-year investigation him from revealing that Indonesian Government admitted in 2002 that due to “insufficient evidence”.392 Special Forces had participated in the their officials were informed by the attack on Balibo.386 Indonesians on 13 and 15 October 1975 MEAA said in response to the that Balibo would be seized covertly abandonment: “Last week, the AFP Pinch also found that “there is strong by Indonesian troops on 15 and 16 admitted that over the course of its five- circumstantial evidence that those October, which is what happened. year investigation it had neither sought orders [to kill the journalists] emanated They also quickly found out about the any co-operation from Indonesia nor from the Head of the Indonesian deaths. As the coroner’s report shows, had it interacted with the Indonesian Special Forces, Major-General Benny key Australian officials and Ministers National Police. The NSW coroner named Murdani [died August 24 2014] knew the main facts about the deaths the alleged perpetrators involved in to Colonel Dading Kalbuadi [died within 48 hours. From the closed murdering the Balibo Five in 2007. Seven October 10 1999], Special Forces Group material, including an Australian years later the AFP has achieved nothing.

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“It makes a mockery of the coronial inquest for so little to have been done in all that time. This shameful failure means that the killers of the Balibo Five can sleep easy, comforted that they will never be pursued for their war crimes, never brought to justice and will never be punished for the murder of five civilians. Impunity has won out over justice.”393

On October 15 2015 the son of Gary Cunningham, John Milkins, said he wanted more information about why the AFP had decided to close the investigation. “I would be pleased to see it reopened. I feel it was closed without an explanation to the Australian public.” Milkins added: “We [the families of the slain journalists] don’t think that story’s finished. I think perhaps the government would like the book to be completely closed but I think there are many chapters still to write, there are many unknowns.”394 Above: Prabowo Subianto with Balibo In a letter to MEAA on April 15 2015, suspect Yunus Yofiah; Left: Mohammad the AFP’s Deputy Commissioner Yunus Yosfiah; Below: , died Operations Leanne Close said: “As stated by the AFP Commissioner during aged 53. the last Senate Estimates hearing on November 20 2014 the AFP has now completed an extensive review of the investigation into the deaths of the ‘Balibo Five’. It has been determined there is insufficient evidence to support providing a brief of evidence to the office of the Commonwealth Director of Public Prosecutions for consideration for prosecution under Australian law.”

Despite the AFP saying that there was “insufficient evidence”, the AFP — had it bothered to make contact with anyone in Indonesia during its five years of In 1998-99 Yosfiah served as minister investigation — would not have had any of information in the government of difficulty finding someone who may have President Bacharuddin Jusuf Habibie. been able to throw light on the events at In May 1998, in his inaugural speech ROGER EAST Balibo: the alleged war criminal Yunus as minister, he promised that he would Roger East was a freelance journalist on Yosfiah, the man identified by NSW support journalists in their profession.395 assignment for Australian Associated Deputy Coroner Dorelle Pinch as having Press when he was murdered by the ordered the killing of the Balibo Five. As late as March 2019, Yosfiah was Indonesian military on the Dili wharf supporting the ticket of Indonesian on December 8 1975. MEAA believes In the more than 40 years since Balibo, presidential candidate, Gerindra that in light of the evidence uncovered Yosfiah has not lived in obscurity; he Party chairman Prabowo Subianto. by the Balibo Five inquest that led to would not have been difficult for the The Jakarta Post reported: “Prabowo, the AFP investigating a war crime, AFP to find. An internet search reveals a former commander of Kopassus, there are sufficient grounds for a in seconds that Yosfiah has led a very is also backed by several retired similar probe into Roger East’s murder active life since the killings. members of the elite unit, including and that similarly, despite the passage Lt. Gen. (ret) Yunus Yosfiah, a former of time, the individuals who ordered After Balibo, Yosfiah’s career took off. Kopassus captain during Indonesia’s or took part in East’s murder may be He rose to be one of Indonesia’s most 1975 invasion of then-East Timor, found and finally brought to justice. decorated soldiers. He was commander and Lt. Gen. (ret) Yayat Sudrajat, the of the Armed Forces Command and Staff former chief of the military’s Strategic However, given the unwillingness to College (with the rank of Major General) Intelligence Agency (BAIS).”396 pursue the killers of the Balibo Five, and Chief of Staff of the Armed Forces MEAA does not hold out great hope Social and Political. He was chairman A war crime was committed at Balibo in that Australian authorities will put in of the Armed Forces Faction in the 1975. The killers have been getting away the effort to investigate East’s death. Indonesian National Assembly. He with murder. Again, it is a case of impunity where, retired from the army in 1999 with the literally, Roger’s killers are getting rank of Lieutenant General. It is never too late for justice. away with murder.

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The ‘Flag House’ at Balibo today Felix Dance

THE BALIBO FIVE-ROGER EAST print/online and broadcast media, and At age 87, Shirley Shackleton says FELLOWSHIP there is a balance between genders. Both such events can still make her sad, MEAA has honoured the memory of Pricilia and Augusto are young journalists bringing back such painful memories. the Balibo Five and Roger East with a with impressive track records and a thirst But this school opening was just so fellowship in their name, in conjunction to succeed in their chosen profession.” uplifting. ‘It’s been such a hard fight, with Union Aid Abroad-APHEDA, with but look at it!” she said. ‘It’s marvellous MEAA providing the bulk of the funding For more information on the these children have got a beautiful and additional funds being received Fellowship, go to: www.meaa.org and school’.”398 from the Fairfax Media More Than search under “Balibo Five Roger East” Words workplace giving program, and BALIBO HOUSE TRUST from private donations. The fellowship LIVING MEMORIAL The trust honours the memories of the sponsors travel, study expenses and In March 2019 a new school was opened Balibo Five by working with the Balibo living costs for East Timorese journalists in Balibo as a memorial to the five Community to enrich their lives. Its to undergo training to develop their murdered journalists.397 Seven Network work includes: skills in Australia. The fellowship was journalist Nick McCallum wrote: “The • Promoting early childhood education established on the 40th anniversary of school was built in an area where there through the Balibó Five Kindergarten the murders of the Balibo Five in 1975. were no education facilities. This now and the proposed Prep-Grade Two means local children will no longer miss school at Belola. The 2018 recipients of funding from the out on the start of a basic education… • Developing skills through the Balibó fellowship are: Community Learning Centre. • Maria Pricilia Fonseca Xavier, a “East Timor’s Education Minister • Creating employment and income journalist and news broadcaster in Dulce Soares grew up near Balibo and through tourism at the historic Balibó Tétum and Portuguese at Timor-Leste her family had direct contact with the Fort, Balibo Fort Hotel and Dental Television (TVTL). Australian journalists several days Clinic. • Augusto Sarmento Dos Reis, senior before they were killed. She vows the • Improving the oral health of the Balibo sports journalist and online co- local schoolchildren will now be taught community by providing free dental ordinator at the Timor Post daily about the young Australians who died treatment and community education newspaper and diariutimorpost.tl trying to tell a story the world needed to and preventative programs. website. know. ‘Honestly to say as a Timorese I • Fostering awareness of the feel ... I’m very emotional,’ she said. ‘All significance of Balibó to relationships MEAA chief executive Paul Murphy Timorese people, especially people in between Australia, Timor-Leste and said all the applications were again of a Balibo, they should know exactly what is Indonesia. high quality and representative of the this story about the Balibo Five’. • Maintaining a permanent memorial to diversity of journalism in East Timor. “The formal opening ceremony was the five journalists murdered at Balibó “We are well aware that is not easy to attended by the widow of one of the in 1975 and to the Balibó people work as a journalist in Timor-Leste, and journalists, Shirley Shackleton. [She] murdered during the Indonesian journalists face many hurdles including a was swamped by the 56 students occupation of Timor-Leste. lack of resources and training, and attacks now attending the school and was from the government on press freedom,” overwhelmed by the gratitude. ’I think For more information on the work he said. “But we are delighted that the it’s a wonderful legacy. True in every of the Balibo House Trust, go to: successful applicants represent both way,’ she said. http://balibohouse.com/

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Juanita Nielsen photographed at her Paul Moran Pott’s Point office on October 4 1974 McNeil Fairfax Photos

PAUL MORAN Paul Moran, a freelance cameraman on assignment with the Australian Broadcasting Corporation to cover the , was killed by a suicide bomber on March 22 2003 leaving behind his wife Ivana and their then seven-week- old daughter Tara.

Paul was the first media person killed in the 2003 Iraq war.

The attack was carried out by the group Ansar al-Islam — a UN-listed terrorist arm of Al-Qaeda. According to US and UN investigations, the man most likely responsible for training and perhaps even directly ordering the terrorist attack is Oslo resident Najmuddin Faraj Ahmad, better known as Mullah Krekar. He has escaped extradition to Iraq or the US because Norway resists deporting anyone to countries that have the death penalty.

JUANITA NIELSEN The Daily Telegraph reported that a Krekar had been imprisoned in Norway, Sydney journalist and editor Juanita “club employee, Eddie Trigg, who guilty of four counts of intimidation Nielsen, disappeared on July 4 1975. set up the meeting, was jailed in under aggravating circumstances. He Nielsen was the owner and publisher of 1977 after admitting that he and an was released from prison on or around NOW magazine. accomplice had planned to kidnap January 20, 2015. It was revealed that he Nielsen less than a week before she would be sent into internal “exile” to the She had strongly campaigned against disappeared, but pulled out of the village of Kyrksaeteroera on the coast, the development of Victoria Street caper at the last minute. Police believe south-west of Trondheim.401 Krekar in Potts Point, in the electorate of the small-time crook was likely the would have to report regularly to police Wentworth, where she lived and worked. last person to see Nielsen alive.”399 and would stay in a refugee centre.

There were numerous threats to her Trigg died in 2013. On February 10 2015 MEAA wrote to safety. Green bans, union-backed Justice Minister Michael Keenan and moratoriums on further development A 1983 coronial inquest into Nielsen’s AFP Commissioner Andrew Colvin once in Kings Cross, had begun to bite on disappearance returned an open more, stating: “We are deeply concerned property developers who were losing finding but noted the investigation that if those responsible for killing Paul money on interest payments without may have been hampered by police are not brought to justice then they are any work on their developments able to corruption.400 getting away with murder. take place. As recently as August 2014, NSW “You would be aware that the United In the midst of the tension, Nielsen Police forensics dug up the basement Nations General Assembly has adopted agreed to attend a meeting at the of a former Kings Cross nightclub in Resolution A/RES/68/163 which urges Carousel Club in Kings Cross on July an attempt to locate her remains but member states to: ‘do their utmost to 4 1975, regarding advertisements the search was unsuccessful. While prevent violence against journalists and being placed in an upcoming edition there have been convictions over her media workers, to ensure accountability of NOW. The club’s owner at the time abduction, no formal homicide charges through the conduct of impartial, was “King of the Cross”, organised have been brought and her remains speedy and effective investigations into crime boss Abe Saffron. have never been found. all alleged violence against journalists

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and media workers falling within is still uncertain if Krekar, and his co- “Two years after ‘the incident’, the their jurisdiction and to bring the defendents, will travel to Italy for any wondrous Peter Bowers would write a perpetrators of such crimes to justice hearings. The Norwegian Government two-part series in The Sydney Morning and ensure that victims have access to has ruled out guaranteeing that Krekar Herald in November 1981 which nailed appropriate remedies’.” will not be sent to Italy. Reports said the Zambians for Joyce’s murder. Krekar “would still not travel without Photographer McKendry, in a detailed On April 15 2015, the AFP’s Deputy guarantees from the Norwegian interview, scrupulously described the Commissioner Operations Leanne government that he would return after individual gunman who had shot Joyce Close replied to MEAA’s letter saying giving evidence in the case. He has even though he was never asked by the that there was insufficient information also demanded that Norway get him Zambians to identify him; nor, indeed, available to justify an investigation removed from the UN terrorist list.”403 did Zambia even interview McKendry under section 115 of the Criminal Code after the New Zealander refused to sign, Act 1995 (Harming Australians) and that while still locked up for four days in a despite the new information on Krekar’s Tony Joyce cell, the concocted police version of a movements, AFP would not be taking ‘battlefield shooting’. any further action. Bowers was damning in his analysis: On February 20 2015, in the aftermath “The cover-up [with Kaunda and Fraser] of the massacre in Paris of journalists, shows with chilling clarity how heads editorial and office staff at the Charlie of government, whatever their politics, Hebdo magazine, it was reported that will put the wider national interest Krekar had been arrested for saying in above individual human rights and an interview that when a cartoonist fundamental justice when they perceive “tramples on our dignity, our principles that to do otherwise would harm the and our faith, he must die”. It is believed national interest.” Krekar was subsequently arrested on a charge of “incitement”.402 In an interview on ABC national television with Richard Carleton on November 9, Krekar was arrested in prison in 1981, after publication of his closing Norway on November 11 “in a co- article, Bowers was even harsher. He told ordinated police swoop on Islamist Carleton: “The Prime Minister (Fraser) militants planning attacks”. The raids is a party to the cover-up to the extent across Europe targeted Krekar and he is no longer pressing the Australian 14 other Iraqi Kurds and one non- TONY JOYCE position and demanding an inquiry [by Kurd. Authorities allege the men were ABC foreign correspondent Tony Joyce the Zambians]. Not only that, but he went involved in Rawti Shax — a group arrived in Lusaka in November 21 1979 into Parliament and made excuses for the spun-off from Ansar al-Islam, that has to report on an escalating conflict Zambian authorities failing to find out alleged links to ISIL. Authorities allege between Zambia and Zimbabwe. what had really happened. Clearly Mr it is a jihadist network led by Krekar. Fraser has seen it to be in the national Investigators claim Krekar pledged While travelling by taxi with cameraman interest to no longer press cover-up of a allegiance to ISIL in 2014. New Zealander Derek McKendry to crime in Zambia, to turn a blind eye, to film a bridge that had been destroyed connive. Why? Because he is obviously In mid-March 2016 Norwegian media during recent fighting, Zambian soldiers concerned it could affect his personal said Krekar had been released from jail stopped their vehicle and arrested the relationship with Kaunda [as well as] his after a court found him not guilty of two journalists. whole black-African strategy which is making threats. His lawyer said Krekar one of his strongest commitments in the will seek compensation. The pair were seated in a Zambian international arena.” police car when, it is claimed, that a On November 23 2016 the Norwegian suspected political officer with the ... in September 1981, on the eve of a Police Security Service arrested Krekar militia reached in through the car’s Commonwealth heads of government in order to secure his extradition open door, raised a pistol and shot Joyce conference in Melbourne and Sydney, to Italy. But on November 25 it was in the head. with Malcolm Fraser the host and reported that Italy had withdrawn Zambia’s President Kaunda in its extradition claim, and Krekar was Joyce was evacuated to London, but attendance, along with Britain’s released. never regained consciousness. He died Margaret Thatcher and a raft of lesser in hospital on February 3 1980. He was Commonwealth leaders, an internal In mid-January 2018, an anticipated 33 and was survived by his wife Monica memo was circulated within the senior Italian trial of Krekar and five others and son Daniel.404 bureaucracy in Canberra: “We do not (including Krekar’s son in law) was wish President Kaunda to arrive in subsequently delayed again as Krekar Zambia’s President Kenneth Kaunda Australia under the impression we are and his lawyers had not been notified. wrote to Australian Prime Minister dissatisfied with his explanation of events Under Italian law, a hearing can take Malcolm Fraser to claim that Zambian ... We would not want the Joyce matter place if the defendant is not present “security forces” had fired at Joyce raised further with the Zambians at this but the delay is believed to have been and McKendry, “mistaking” them for stage’.”405 granted to allow formal notification to white “Rhodesian commandos” who be provided to Krekar’s lawyers. had crossed the border with Zambia, MEAA hopes that, despite the passage formerly Northern Rhodesia. of time, efforts can be made to properly On March 4 2019 a court in Bolzano, investigate this incident with a view to northern Italy, decided to postpone the On July 31 2015, journalist Alan Ramsey determining if the perpetrators can be next hearing in the case until May 7. It wrote in The Sydney Morning Herald: brought to justice.

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The route the convoy took Remi Bianchi, SMH

solidarity mission on December 5-11 2009406 and also attended several funerals of the journalists who were THE AMPATUAN killed. MEAA followed up its initial engagement in several subsequent missions to determine what progress was being made on bringing the MASSACRE OF perpetrators to account given the Philippines government’s appalling history of impunity. In 2014, on the fifth anniversary of the massacre, 32 JOURNALISTS an IFJ mission included two MEAA representatives, one of whom was the “THE KILLERS WANT YOU TO FORGET. MEAA Media federal vice-president.407 #KEEPTHESTORYALIVE” MEAA has continued to call for justice for the victims of the massacre, an MEMORIAL TO THE VICTIMS OF THE AMPATUAN MASSACRE end to the impunity surrounding journalist killings and increased safety for our journalist colleagues in he November 23 2009 This year marks the 10th anniversary the Philippines.408 Over several years Ampatuan Massacre in the of the massacre that took place in the MEAA’s Media Safety & Solidarity Fund southern Philippines is a case southern Philippines. Nearly a decade has provided essential financial support study of what happens when on, the families of those slain in the and assistance to pay for the education impunity surrounding the massacre are still awaiting justice of the children of slain Filipino Tkilling of journalists is allowed to fester. — many suspects are still at large journalists, including the children of the and those that have been detained massacre victims.409 It demonstrates how impunity taints have manipulated the legal system to and corrupts a society, enveloping repeatedly delay the judicial process. THE MASSACRE and entrapping communities, police, The culture of impunity that has military, government and the judicial For many years, MEAA has closely flourished in the Philippines after its process. The failure to address impunity monitored the impact and aftermath return to democracy in 1986 proved continues to harm Philippines society of the massacre. The MEAA Media to be the perfect hothouse for this act today with the Duterte administration’s section federal president and a of extreme brutality. A total of 107 bloody and brutal “drug war” of state- MEAA employee participated in media workers had been killed in the sponsored extrajudicial killings that has the initial International Federation Philippines prior to, and not including, claimed thousands. of Journalists’ rapid assessment the massacre (1986 — November 22

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The checkpoint where the convoy was abducted Mike Dobbie

2009410) with barely any perpetrators had seen the government increasingly Fearing the Ampatuan clan will brought to justice and none of those who turn to local war lords and their militias interfere, Toto Mangudadatu arranges masterminded and ordered the killings. to secure provincial towns and villages for his wife Genalyn, his sisters and against the unrest. It handed clans such two female lawyers to travel in the It’s likely the massacre’s perpetrators’ as the Ampatuans extraordinary powers convoy to file his candidacy papers for reasoning is that if so many people had and equipped them with war chests of him. It is believed that in accordance already been killed with little or no police weapons in exchange for their loyalty. with Muslim tradition, no harm will investigation let alone prosecution, why come to the women. not simply scale up the killings from a The Ampatuans had used their single figure to dozens? dominance to intimidate local police, Prior to departure, the family is still judges and provincial administrators. troubled by security concerns. The The Ampatuan Massacre takes place convoy’s departure is delayed while the in the province of Maguindanao, on But Mangudadatu was now challenging family seeks a military escort from the the island of Mindanao, on Monday, the Ampatuan clan’s heir apparent, and commander of the 6th Infantry Division, November 23 2009.411 The massacre is many journalists are gathering at the Major General Alfredo Cayton — the named after the provincial municipality Mangudadatu compound in the town of 601st Infantry Brigade is operating in in which it took place as well as the war- Buluan to report on the beginning of the Maguindanao under the command of lord family that allegedly orders and election campaign and to see how the Colonel Merdado Geslani. carries out in the killings. Ampatuans will react to the emergence of a gubernatorial rival. Instead of providing the escort, The massacre victims are driving in a Cayton assures them that the road to multi-vehicle convoy heading to the The period for filing the candidacy Sharrif Aguak is clear and safe, and provincial capital of Sharrif Aguak papers had opened the previous Friday, that there are units of the Philippines to file election candidacy papers November 20 2009. There were rumours National Police (PNP) deployed along for Esmael “Toto” Mangudadatu for that the Amaptuan family will strongly the highway. Pressed again by the the upcoming May 10 2010 national object to the fielding of candidates from journalist, Cayton responds: “There is gubernatorial elections. the rival Mangudadatus. nothing to worry about.”

Mangudadatu is nominating for the Philippines National Police (PNP) Under United Nations Security Council position of provincial governor, running respond, setting up six new additional Resolution 1738 passed in 2006, against Andal Ampatuan Jr, the son checkpoints along the 27km stretch of member states are required to ensure of the incumbent warlord who had highway between the each clan’s power that journalists, media professionals governed the province for years. After bases. The police say they will use the and associated personnel must be so long in control, the prospect of a checkpoints to reduce the number of “respected and protected” in “areas of challenge coming from the Ampatuan’s firearms in circulation. Three of these armed conflict”. greatest rival was big news. checkpoints are in Ampatuan Town — where the clan has its compound. A journalist later said of Cayton: The Ampatuan clan was loyal to then “They in the military knew better Philippines President Gloria Macapagal The day before the convoy departs, than us. He should have informed Arroyo. Under her stewardship the journalists begin arriving at the his field commanders and field units clan had become enormously powerful Mangudadatu compound in Buluan, that journalists would be covering the thanks to government largesse and central Mindanao. The convoy will convoy of Mangudadatu. If he had done military expediency. A long-running depart at 9am the following morning, that, I think the… massacre could have insurgency on the island of Mindanao Monday November 23. been prevented.”

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Police uncovering crushed procedure among Filipino journalists used vehicles from one of the pits at to covering the Mindanao insurgency: the massacre site Nonoy Espina always stay in mobile phone contact with journalist colleagues in case of trouble.

Mangadadatu’s wife Genalyn also calls her husband to briefly tell him what is happening.

When the three journalists reply to their colleague seeking more information about what was happening at the checkpoint, they get no response. For the next half hour they keep calling their friends but no one answers.

At the checkpoint, the six vehicle convoy and the two additional cars are commandeered by the gunmen. The eight vehicles are diverted west from the highway on to a rough dirt track, driving along a ridgeline for about 2.5km to the deserted hamlet Sitio Masalay, arriving at about 10.30am.

The convoy vehicles stop on a knoll with a steep drop-off, overlooking a broad lush-green valley. The knoll is covered in long grass and topped by a single tree.

A yellow tracked-wheel excavator is at the top of the track, just short of the tree. The excavator has dug three pits between 1.5 metres and 3.5 metres deep. The excavator had earlier been carried on a transporter to the checkpoint, and then driven up the side road. The excavator’s engine casing is stamped with the words “Property of the province of Maguindanao — Gov. Datu Andal Ampatuan Sr”. Over the next hour the armed men kill 58 people: 43 men and 15 women. Of the 58, 32 are journalists and media workers. Victims are taken out of the vehicles and shot in batches of about 10; those who refused to get out are shot where they sit. The bodies of some of the 58 victims of the Ampatuan The excavator begins to bury the bodies Massacre Nonoy Espina and vehicles.

At 10.40am the three journalists, now The convoy of six vehicles sets off At almost precisely 10am, as the convoy fearful that they cannot raise anyone in from the Mangudadatu compound just approaches Ampatuan Town, the eight the convoy, alert Major General Cayton after 9am. vehicles are stopped at a checkpoint at via a text message: “General, I would the hamlet of Sitio Malating, near the like to inform you that more than 30 A forgotten laptop saves three village of Barangay Salman, by officers of journalists in the convoy are already journalists’ lives. The three were meant the PNP commanded by a chief inspector. kidnapped by unidentified armed men.” to be part of the convoy but had turned back to retrieve the forgotten device Emerging from the long grass and from At 11am Cayton replies: “I will try to from their hotel. inside the simple roadside watch house check that info with the PNP.” appear about 100 armed men allegedly The convoy is slowly moving along the led by Andal Ampatuan Jr. Troops of the 64th Infantry Brigade highway, so slow that two other vehicles under Geslani’s command are ordered with six people inside, unwittingly get The three journalists who had turned to commence operations to rescue caught up in the convoy’s progress as they back receive a text message from a those who have been abducted. At 1pm try to overtake the convoy’s six vehicles. colleague in the convoy, saying they they make contact with police at the One of the vehicles contains a man have been stopped at the checkpoint and checkpoint — the chief inspector in heading to hospital after suffering a mild that there are many armed men present. command denies any knowledge of any stroke; he is accompanied by his wife. The text message is a standard safety alleged abduction.

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At 1.30pm the soldiers, in four armoured The Ampatuan Massacre site vehicles, cautiously fan out to the west, six months after the massacre still believing they are conducting a Mike Dobbie rescue operation. Two-thirds of the way along the track they encounter two armed men and hear the roar of the excavator’s engine. At 2.50pm they see vehicles in the distance, on the top of the ridgeline.

At the massacre site, the gunmen learn that Army units are approaching. They hurriedly flee before the soldiers arrive, unable to bury the vehicles and bodies in time to hide all trace of the massacre.

The soldiers reach the massacre site at about 3pm and initially find 22 bodies and five vehicles at the scene. Subsequent police operations reveal that three vehicles and six bodies are buried in the large pit dug by the excavator. They are covered with soil in alternating layers, with the excavator used to crush the vehicles flat. The investigators count six layers in the large pit.

Five victims are exhumed from another pit and 24 victims from the third. A 58th victim’s body has never been found. Some victims are shot in the genital area. Others are mutilated. Many are shot in the face, making them unrecognisable.

At 6pm the Philippines Government declares a state of emergency in the province (subsequently martial law will be declared on December 5 2009). A PNP scene of crime operatives (SOCO) team arrives at the site at 10pm and begins its investigations. The bodies are quickly removed without proper forensic examination due to the tropical heat.

Four days after the massacre General Cayton and Colonel Geslani are relieved of their respective commands and sent massacre. Barely a month later, Cayton Philippines police says only 77 are still to Manila to attend an investigation is promoted to Vice-Commander of the at large. into the failure to provide security for Army. He retires the following month the convoy. on February 14 2010. In October 2014 The police do admit that five of the Geslani is promoted to Brigadier- suspects still on the run are police The National Union of Journalists of General. officers. Four more are members of the Philippines (NUJP) has said: “It is the Armed Forces of the Philippines a fact that an Army intelligence unit A total of 197 people are officially (AFP), and 53 are members of the witnessed the convoy being stopped and accused of having a role in the government-subsidised paramilitary then taken to the killing grounds in Sitio massacre. Eighteen of the accused carry Civilian Volunteer Organizations Masalay. The unit had been reporting the Ampatuan surname, including clan (CVOs). Worse still, nine of those back to Geslani’s headquarters as events patriarch Andal Ampatuan Sr, and his yet to be arrested have the surname developed. It is clear… there is no way sons Andal Jr and Zaldy Ampatuan. The Ampatuan. Some of those nine had he can claim ignorance and that the only chief inspector at the checkpoint and a run for political office in Maguindanao conclusion that can be drawn is that he, staggering 61 other police officers are over the preceding five years, while still too, had a degree of involvement in the charged for their role in the massacre. somehow eluding capture. Ampatuan Massacre.” By the fifth anniversary of the massacre At least four prosecution witnesses Sixteen days after the massacre the the Philippines Government claims have been murdered or died under Inspector General of the Armed Forces 118 people have been arrested and mysterious circumstances in the past of the Philippines finds Cayton and arraigned, but according to then Justice nine years. Andal Ampatuan Sr, the clan Geslani were not remiss for failing to Secretary Leila de Lima, 84 of the patriarch and the alleged mastermind of provide security to the victims of the suspects had still not been captured; the the crime, died in 2015.412

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President Rodrigo Duterte has encouraged the use of extrajudicial of the Philippines vigilantism to fight a war on drugs. Human Rights Watch reports that according to “the Philippine Drug Enforcement Agency (PDEA), 4948 suspected drug users and dealers died during police operations from July 1 2016 to September 30 2018. But this does not include the thousands of others killed by unidentified gunmen. According to the Philippines National Police (PNP), 22,983 such deaths since the ‘war on drugs’ began are classified as ‘homicides under investigation’.”419

On September 27 2018, Duterte admitted: “My only sin is the extrajudicial killings.”420

Duterte’s past comments about journalists (“Just because you’re a journalist you are not exempted from assassination if you’re a son of a bitch.”421) and the aggression directed by Duterte in harassing and intimidating Rappler editor the year. There is hope of a verdict this Maria Ressa points to a willingness calendar year.414 However, even now, 70 to embolden violent action against suspects are still at large.415 journalists. The threat to the safety While the trial has dragged on, local of journalists and their journalism is media says the case is unlike any palpable. judicial action in Philippines history. “Consider the work load: 166 witnesses On December 18 2013 the United for the prosecution and 107 witnesses Nations General Assembly adopted for the defence or 273 witnesses to Resolution 68/163 which calls on states be cross-examined, 15 sets of offers to promote a safe working environment of evidence in connection for the bail for journalists, including awareness applications of the 70 persons accused, raising measures for law enforcement who are part of the 197 respondents officers and military personnel. including the prime suspect… Andal Ampatuan Jr. The nine-year trial had The resolution requires states to supposedly produced transcripts of monitor and report attacks against stenographic notes worth 59 volumes, journalists, publicly condemn attacks 129 volumes of records for the case and dedicate resources to investigate and 10 volumes of the prosecution’s and prosecute attacks. The resolution evidence.”416 also requires that member states do their utmost to prevent violence Ampatuan memorial National Union of It is noteworthy that over several years, against journalists and media Journalists of the Philippines on subsequent IFJ missions to inspect workers, ensure accountability the massacre site and participate in through the conduct of impartial, There has been little impetus to get a memorial services, the victims’ families speedy and effective investigations result in the trial which has crawled along and accompanying journalists have into violence against journalists at an incredibly slow pace. The Ampatuan been provided with a military escort due and media workers, and bring the trial began on September 15, 2010 — 293 to ongoing safety fears in the heart of perpetrators of these crimes to days after the arrest of Andal Ampatuan Jr. the Ampatuan clan’s power base. justice; and ensure that victims have access to appropriate remedies. At times the court would sit only Since the massacre, the bloody toll two days a week — Wednesdays and of journalists killed with impunity In almost every case of a journalist Thursdays. In the more than 1500 days has continued. In the 10 years since killing in the Philippines since 1986, to the fifth anniversary of the massacre the massacre of the 32 journalists at the perpetrators have gotten away with the court had sat for only 206 days. It Ampatuan, a further 49 media workers murder. Impunity continues to reign took 560 days before the assets of the have been killed in the Philippines unchecked. Ampatuans were frozen. The axiom of (November 24 2009 — December “justice delayed is justice denied” is 31 2018417). That’s a total death toll Mike Dobbie is MEAA Media’s surely at work in the Philippines.413 since the return of democracy to the communications manager. He led the Philippines of 188 slain journalists and IFJ’s 2009 rapid assessment solidarity As of March 2019, the trial before Judge media workers. 418 mission and participated in subsequent Jocelyn Solis-Reyes is still underway. investigative missions including the The prosecution is expected to rest its It does not help that current five-year anniversary international case at some point mid-way through Philippines president Rodrigo Duterte solidarity mission in November 2014.

2019 PRESS FREEDOM REPORT | 91 THE PUBLIC’S RIGHT TO KNOW TACKLING IMPUNITY n October 29 2018, MEAA the Convention presented the text and of the Convention and more importantly wrote to Foreign Affairs answered legal issues. putting action to protect journalists and Minister Marise Payne and tackle impunity higher up the agenda of Shadow Foreign Affairs The joint call came during the 40th the Human Rights Council. If impunity is Minister Penny Wong session of the United Nations Human allowed to go unchallenged, if journalists Oadvising them that on October 22 the Rights Council in Geneva. self-censor, if societies are deprived of global journalists union, the Brussels- information, then media freedom and based International Federation of Last year, on average, two journalists were democracy suffer.” Journalists (MEAA is an affiliate killed every single week — yet impunity member and hosts of the IFJ’s Asia- for crimes against journalists remains at IFJ President, Philippe Leruth, said: “The Pacific office in Sydney) had made a 90%. Now a coalition involving the IFJ, International Federation of Journalists formal representation to the United media industry groups and press freedom wants the fight against impunity to Nations proposing a new UN convention campaigners have taken the demand for intensify. The common law which forbids dedicated to the protection of media action to the heart of the UN’s Human killing and the international protection professionals. Rights Council. of civilians in conflict zones fail to protect journalists because they don’t consider In its letter, MEAA noted that to date At an event organised by the IFJ, journalists as specific targets. When a in 2018, two journalists had been killed representatives from the European journalist is murdered a disturbing voice every week on average and conviction Broadcasting Union, International Press is silenced but also the whole press as rates for those who mastermind such Institute, UNI-MEI and Al-Jazeera self-censorship increases: you don’t killings remain almost non-existent. joined journalists’ unions from Europe find heroes to take over the task of the and the Middle East and governments murdered journalist.” “Journalist killings is a growing concern, from every corner of the globe in urging highlighted most recently by the murder the international community to adopt a IN THE SHADOW OF VIOLENCE of Saudi journalist Jamal Khashoggi dedicated international instrument to On June 29 2018 four media and bomb threats made to the offices of enhance the protection of journalists. professionals and one staff member of CNN,” MEAA said.422 the Capital Gazette, a daily published The Convention on the Protection and in Annapolis, the capital of Maryland “The IFJ argues that the deliberate Independence of Journalists and Other state, were shot dead by a gunman in targeting of journalists and the systemic Media Professionals424 seeks to provide what police described as a “targeted impact of attacks on media workers greater safeguards for media workers by: attack”.425 indicates the need for a dedicated Rectifying a gap in international law for instrument to tackle crimes against binding norms establishing safeguards for The paper named the victims as editor journalists and has proposed the new media workers specifically and community reporter Wendi Winters convention. • Including not only journalists, but all (65), assistant Rebecca Smith (34), the media professionals who are at risk assistant editor and columnist Robert MEAA added: “There is an important every day, from the cameramen to the Hiaasen (59), editorial writer Gerald Australian element to the proposal. drivers, interpreters etc Fischman (61) and reporter and editor Since 1975, nine Australian journalists • Allowing denunciations of systematic John McNamara (56). Two more people have been murdered with impunity violations by persons other than the were injured in the shooting, according — eight while working on assignment direct victims, effectively combating self- to media reports. overseas. The most recent case is that censorship of ABC cameraman Paul Moran killed • Providing for interim measures and an The paper’s crime reporter Phil Davis by a car bomb in northern Iraq in 2003, expedited procedure in case of alleged told media that the gunman, named as leaving behind his wife and seven- violations. Jarrod Ramos “shot through the glass week-old daughter. The individual who door to the office” before opening fire ordered the bombing is known and is The Convention not only includes on employees. He was later arrested currently residing in Norway — but he incontrovertible obligations such as the by police at the scene and taken has not been brought to justice for his protection of journalists against attacks into custody. The suspect had lost a role in the murder of Paul.”423 on their life, arbitrary arrest or forced defamation case against the newspaper disappearances, but also others so far in 2012, media reports added Subsequently, on March 19 2019, the found only in soft law, like the obligation International Federation of Journalists to protect the confidentiality of MEAA responded426 to the sickening issued this statement: journalistic sources; news of five deaths saying it highlighted • not to misuse national security to hinder the growing threats to journalists. Representatives from governments in the work of journalists through arbitrary MEAA Media section president Marcus every continent today joined the IFJ, detention; Strom said: “When political leaders journalists’ unions, editors groups, public • to conduct an effective investigation around the world are regularly decrying broadcasters and media organisations where crimes against journalists have ‘fake news’ and labelling journalists in a united call for the United Nations to been committed, capable of bringing to as ‘enemies’ they are contributing to a take action to tackle impunity by adopting justice not only the executors, but also volatile and dangerous environment for a Convention on the safety and protection the moral authors of crimes. journalists,” said. of journalists. IFJ General Secretary Anthony Bellanger “We can’t ignore the proliferation of Senior lecturer Carmen Draghici from said: “Today’s event was an important this dangerous rhetoric. Words have the University of London and author of step in building support for the adoption consequences.

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“It is time for leaders to demonstrate The two suicide attacks hit central in Riyadh next week. MEAA understands their respect and support for journalists Kabul, on April 30. The first bomb that Australia’s ambassador and the and journalism. Threats, harassment was detonated by an assailant on Austrade regional manager will be and intimidation of the media are a motorcycle and the second was attending. threats to press freedom and should be detonated 20 minutes later among called out as such,” Strom said. those who had come to rescue those Given many representatives of targeted in the first attack, including a governments and corporate sponsors/ “Australian journalists are devastated by group of journalists.427 partners have withdrawn from the the news but are inspired by the courage conference in protest at the horrific of journalists and staff at the Capital State “actors” also hunt down and murder of Saudi journalist Jamal Gazette to continue to serve their kill journalists. On October 2 2018 Khashoggi, MEAA is concerned that community and the craft that we love.” Jamal Kashoggi, the Saudi columnist by maintaining an official presence at for Washington Post disappeared after the conference Australia is sending an Terrorism still targets journalists. he went to the consulate of Saudi appalling signal. In Afghanistan on April 30 2018 Arabia in Istanbul, Turkey, to arrange nine journalists, including a female paperwork for his marriage. After It seems hardly necessary to press journalist, were killed in Kabul in back- a fortnight and following reports home to you the very great concern to-back suicide attacks, the second of that he had been killed inside, Saudi that Australia’s journalists feel if our which targeted the journalists who had authorities confirmed the news of his government fails to fully condemn the gathered on the site of the first blast killing, blaming the crime on rogue regime over Khashoggi’s death. near the Afghan Intelligence services agents who allegedly acted without the headquarters. approval or knowledge of the rulers of Nine out of 10 journalist murders around the oil-rich kingdom.428 the world are never properly investigated Agence France-Presse (AFP) chief and perpetrators never brought to photographer in Kabul Shah Marai, Tolo On October 19 2018, MEAA wrote to account. Australia is not immune News cameraman Yar Mohammad Tokhi, Foreign Minister Marise Payne and from this. Since 1975 nine Australian Radio Azadi correspondents Abadullah Trade Minister journalists have been murdered, all but Hananzai, Moharram Durrani and urging them to ensure Australia does one while on overseas assignment. Not Sabawoon Kakar, 1TV reporter Ghazi not participate in a global investment one of their killers has ever been charged. Rasooli and cameraman Nowroz Ali conference in Riyadh in the wake of the Rajabi, Mashal TV reporter Salim Talash murder of Khashoggi. MEAA wrote: MEAA, as the advocate for Australia’s and cameraman Ali Salimi were killed in journalists, urges you to withdraw the second blast when a suicide bomber Dear Ministers, any official Australian presence and disguised as a journalist detonated representation at the Riyadh conference himself among the journalists who had You would be aware that Saudi Arabia is in support of the global outcry at gathered to cover the first attack. hosting the Future Investment Initiative Jamal’s murder.

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MEAA was subsequently advised by support via our Safety Fund, by carrying We do so not for us, not just to honour the ministers that “the Government out training courses for journalists the lives of all those who have been has determined that official Australian across the world including in some of killed in the pursuit of the truth, representation at the Future Investment the world’s hotspots such as Syria, Iraq, carrying out their professional duties, Initiative event in Riyadh is no longer Yemen and and negotiating but because attacks on journalists’ life appropriate”.429 landmark collective agreements covering or physical integrity have a detrimental the safety and security of media impact on the public’s right to In its list of journalists and media professionals in Tunisia and Palestine. information, contribute to a decline in workers killed in 2018, In the Shadow democratic control and have a chilling of Violence,430 the International More than that, the IFJ continues to effect on everyone’s freedom. Federation of Journalists’ general call all those who kill, jail, threaten secretary Anthony Bellanger wrote: and harass journalists to be held It is not just our fight — it is for all those accountable. From demanding who believe in such rights. The brutal murder of Jamal Khashoggi answers via the Council of Europe’s made headlines around the world. Rightly online Platform for the Protection of Together we can make a difference. so. As gruesome details of him being Journalism and the Safety of Journalists tortured and his body dismembered to meetings with Mexico’s Special The IFJ has called on journalists’ emerged, his murder made front page Prosecutor for Crimes against Freedom groups, media organisations and all news. of Expression (FEADLE), the IFJ and relevant public authorities to respect its affiliates are at the forefront of the International Code of Practice for the The shocking fact is Jamal was not the demanding an end to impunity. Safe Conduct of Journalism: only journalist murdered that week. Zaki Al-Saqaldi was killed in Yemen — one of That commitment to demand the 1 Journalists and other media staff 9 to die in the country in 2018. And Jamal international community act to halt shall be properly equipped for all and Zaki were not the only journalists to the killings of journalists and to bring assignments including the provision be killed that month — another 7 were the killers — including the material of first-aid materials, communication murdered in Afghanistan, Bulgaria, architects of such crimes — to justice tools, adequate transport facilities India, Mexico and Somalia. was reinforced by the launch of a and, where necessary, protective draft Convention on the Safety and clothing; And while evidence in the Khashoggi Independence of Journalists and other 2 Media organisations and, where case pointed to high level involvement in Media Professionals by the IFJ, alongside appropriate, state authorities shall planning the murder and governments a broad-based coalition of representative provide risk awareness training around the world issued statements, organisations of media workers and for those journalists and media those widely believed to be ultimately owners, senior editors and public workers who are likely to be involved responsible for the crime went broadcasters. in assignments where dangerous unpunished. conditions prevail or may be As the rise in the numbers of killings this reasonably expected; Jamal’s is far from the only case where year shows — and the fact that rates of 3 Public authorities shall inform the intellectual author of the crime impunity have remained at around 90% their personnel of the need to remains unpunished. for more than a decade — words are no respect the rights of journalists and longer enough: it is time for action! shall instruct them to respect the 2018 saw 95 journalists and media physical integrity of journalists and professionals lose their lives in targeted The Convention would address media staff while at work; killings, bomb attacks or crossfire important weaknesses in the 4 Media organisations shall provide incidents. Yemen, India, Mexico, international legal regime and provide social protection for all staff engaged Afghanistan and Syria witnessed the a dedicated instrument specific to the in journalistic activity outside the most devastating toll. And whilst South situation of journalists to ensure more normal place of work, including life Asia is now the world’s most dangerous effective implementation of international insurance; region for journalists, no part of the law. Every time a journalist is killed it 5 Media organisations shall provide, globe was left unscathed by those who is not just the individual, the family, free of charge, medical treatment seek to silence the message by killing the the media which suffers. Society is and health care, including costs of messenger. increasingly denied its right to the recuperation and convalescence, for free flow of information and views as journalists and media workers who The rise in killings takes place in the journalists — fearful for their lives — are are the victims of injury or illness context of an increasing polarization of silenced by the assassin’s gun. as a result of their work outside the views across the world with the rise of normal place of work; dangerous nationalist and populist forces Achieving such a Convention is a long 6 Media organisations shall protect in many countries and the stigmatization and difficult road — but we cannot shirk freelance or part-time employees. of journalists and media by politicians from such challenges.The IFJ and its They must receive, on an equal and the enemies of media freedom. affiliates have met with governments, basis, the same social protection and lobbied delegations and missions at the access to training and equipment That is why the IFJ continues to United Nations and taken the argument as that made available to fully prioritise the safety and protection of for stronger action by the international employed staff. journalists — providing urgent material community to every available forum. MORE THAN 1000 JOURNALISTS HAVE BEEN KILLED IN THE PAST 10 YEARS

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The dangers posed to journalists and media staff working in dangerous situations and conflict zones are the subject of extensive record. The IFJ PRESS FREEDOM has recorded the deaths of more than 1000 journalists and media staff over the past 10 years. IN NEW ZEALAND Many journalists are killed, injured or harassed in war zones, either targeted by one side or another or caught in the crossfire of violence. Others are UNCHARTED the victims of premeditated assault and intimidation either by criminals, terrorists or by agencies of the state — the police, the military or the security WATERS FOR KIWI forces — acting secretly and illegally.

Very often there is little that journalists or media organisations MEDIA FREEDOM can do to avoid casualties. There will, inevitably, be accidents, no matter how much care is taken to provide BY COLIN PEACOCK protection and there is little one can do when those targeting media use ruthless and brutal methods to crush journalistic inquiry. any commentators and It also dovetailed grimly with the highly politicians have airily profitable business model of major However, there are steps that claimed the terrorist social media platforms433 and they journalists and media organisations attack in Christchurch weren’t able or willing to stop the stuff should take to minimise the risks on March 15 2019 has spreading online. to staff. In particular, the following Mchanged New Zealand forever. are vital considerations in providing When the government-appointed protection: Another common refrain, echoed on Chief Censor434 banned the gunman’s • Adequate preparation, training and New Zealand newspapers’ front pages online video,435 New Zealand’s biggest social protection. It is essential that the day after the attack, was that this ISPs jointly blocked access to websites journalists and media staff be in a marked “the end of our innocence”. circulating it, including notorious state of readiness when difficulties forums 4Chan and 8Chan. It was a bold arise. There should be a framework Any complacency about the threat of but unprecedented move. for providing individuals with extremism in New Zealand has certainly health care and social protection. been extinguished and things will But some internet and media freedom • Media professionals must be never feel quite the same for many New activists are asking whether legitimate informed and inform themselves Zealanders — especially Muslims ones. use of the internet could be curbed about the political, physical, and in the future when the ISPs concur social terrain in which they are The cancellation of public events and that a crisis demands extraordinary working. They must not contribute the presence of rifle-toting police intervention again. The activists’ to the uncertainty and insecurity of officers on city streets bulked up with concerns peaked when it was revealed436 their conditions through ignorance body armour has been a startling — even that plans to lift the block were reversed or reckless behaviour. chilling — sight for New Zealand people. by the ISPs after intervention by the • Media organisations must guard The police said it was a temporary Government the week after the attack. against risk-taking for competitive measure with the nation is on high advantage, and should promote alert and things will return to normal. Almost all mainstream media applied co-operation among journalists But exactly what the new normal will basic decency and decided against using whenever conditions exist which be in New Zealand’s free and open the video and other images the gunman are potentially hazardous. society remains to be seen — and New posted online, but opinion was divided • Governments must remove Zealand media need to be vigilant about over the so-called “manifesto” also obstacles to journalism. They must incursions into their freedom too. banned by the Chief Censor. His order not restrict unnecessarily the has exemptions whereby journalists and freedom of movement of journalists Some small but significant steps researchers can apply for permission or compromise the right of news have already been taken in the short- to consult the 78-page document (after media to gather, produce and term responses. Soon after the first paying a fee of $NZ102 [$A96.64]) but disseminate information in secure eyewitness reports of shots fired at the that’s not useful for reporters on a and safe conditions. mosques came to the media’s attention, deadline. •  Must Keep Their Hands Off Media. so did the disturbing digital content the Everyone should respect the white supremacist gunman created — a “Everything we need to know about [the physical integrity of journalists GoPro live-streamed video on Facebook shooter’s] motivations can be found and media staff at work. Physical and a sickening “manifesto” of racism, in who he chose to target,” said one interference with filming or fascism and violence. It was, as media journalist. “It’s child-like nonsense. other journalistic work must be commentators around the world pointed Ban it, fire every copy into the sun, prohibited.431 out,432 a massacre made to go viral. it’s a waste of time,” said a Stuff

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(formerly Fairfax Media New Zealand) correspondent. His paper, The Press — the daily paper in Christchurch where the attack took place — also backed the ban. “(It) serves as a practical guide to what is acceptable in this country. Should a resident or visitor not completely understand where the line is, the censor has made it plain,” said the paper. The Press said the ban may actually help police and intelligence agencies because people found to possess the manifesto open themselves to further investigation — just as they do with other forms of objectionable material like child pornography.

But the country’s biggest selling paper disagreed. “The alleged gunman is part of this story and we can’t shy away from that. It doesn’t give his abhorrent views a platform,” the New Zealand Herald said. “People are searching for answers to New Zealand’s most horrific act of terrorism. They’re searching for light in dark corners and this is such a place, despite how difficult that may be,” the paper argued. The New Zealand Herald also reckoned exposure would more effective in outing extremism that could contribute to further attacks. “If the information can in any way equip authorities and experts in being alert to people with these types of ideologies — and help the public be wary — we have done our job,” the paper said.

But it’s impossible to test which approach to censorship is right.

As in post-Port Arthur Australia, gun law changes have been rushed through in New Zealand and the government has also indicated it could introduce new hate speech laws too. New Zealand has already grappled with this437 in 2005 after the United Kingdom drafted its own hate crime laws. Ursula Cheer, New Zealand’s leading services have the right tools to monitor But some academics, broadcasters and media law expert, told the New Zealand extremist communication online, and conservative groups warn any proposed Herald on March 25.438 whether they chose the right targets. laws here would be a threat to freedom of expression — including that the media. In 2018, Australia’s biggest news media The opposition National Party (which companies united to fight439 new national could have been leading the government Last year, one well-known entrepreneur security laws that could criminalise now after emerging as the top-polling tried to prosecute media outlets under reporters and their sources. New party in the 2017 election) has called the Harmful Digital Communications Zealand’s media companies may need for wider powers for intelligence Act — essentially an anti-cyberbullying to do the same in the coming months. agencies — the domestically-focused law. They had written critically but On April 1, the National Business warned Security Intelligence Service and the accurately about his business affairs. “some bureaucrats — the intelligence internationally-oriented Government The move failed, but those who wish to services come to mind — might be Communications Security Bureau. bring the media to heel could try again mindful of the maxim to ‘never waste the National Party leader Simon Bridges if momentum builds against what they opportunity offered by a good crisis’.” has claimed they operate with “both believe to be hate speech which fosters hands tied behind their backs” and need the Far Right. The inquiry into the Christchurch greater powers. terrorist attack will now be a Royal “I would rather the Government looked Commission,440 zeroing in on our New Zealand media have good reason at what’s already there and decided security services. The main questions to worry about what they would do with whether any of that can be improved will be whether the attack could have freer hands and longer reach. In 2014, and made to work properly,” Professor been prevented, whether the security the Prime Minister’s office ordered an

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Deepak Sharma takes a quiet moment of contemplation at a makeshift shrine of flowers at the Botanical Gardens in memory of those killed in the Christchurch shooting | Jason South, Fairfax Photos

investigation of a leak which created unlimited interception. The PM at the withhold information of genuine public a front-page story for Fairfax Media time, John Key, rubbished the claims. interest will be great. Investigations by political reporter Andrea Vance. Her He said he personally put a stop to this the media — also hungry for answers — scoop revealed dozens of New Zealanders “highest form of protection” in March will overlap with the official work and were illegally spied upon by the GCSB. 2013 because it was too intrusive. could bring them into conflict with the The inquiry tracked her movements powers-that-be who feel backstopped by round Parliament and details of her But investigative reporter David Fisher national security imperatives. phone calls from her Press Gallery office. eventually acquired official documents Parliamentary Services handed over this showing Speargun actually continued New Zealand’s search and surveillance private and sensitive data. The head of after the time Key said he ordered a halt. laws are already strong and open to the service later paid for this over-reach abuse. Investigative reporter and author with his job and apologised.441 And “eventually” is the key word. It took Nicky Hager discovered this when his almost three years to get the official home was raided in 2014. Police officers National Party leader Simon Bridges information he needed and John Key wanted the source of the leaked emails also wants to revive an internet had left politics by the time the full at the heart of his lid-lifting book surveillance program canned by the story came out. Dirty Politics after the 2014 election previous government. Project Speargun campaign. Using the recently beefed- was revealed by NSA whistleblower The forthcoming Royal Commission up Search and Surveillance Act, police Edward Snowden in 2014.442 into the terrorist attack in Christchurch seized and copied documents and is bound to uncover things the computers, including those belonging Reporters with sensitive stories would government will want to conceal or to his daughter. They also asked private be vulnerable to such potentially at least “manage”. The temptation to companies for details of his phone,

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online accounts and his travel and procedures to protect whistleblowers head of news at the public broadcaster banking records. at work need to be strengthened. RNZ. “Anyone who raises issues of serious The raids and breaches of his privacy misconduct or wrongdoing needs to Ministers were put on notice by a new were eventually deemed unlawful and have faith that their role, reputation, Chief Ombudsman in 2017, and on followed by apologies and out-of-court and career development will not be March 13 this year, the State Services settlements. Nicky Hager’s legal battles jeopardised when speaking up,” the Commission claimed 95 percent of OIA only came to an end in February this state services minister has said. Some requests in late 2018 were met on time. year when Westpac apologised for Australian state governments already But as political reporter Andrea Vance handing over private information to support whistleblowers who contact found on closer inspection,445 two key police. The police requested it without journalists in if they have not had agencies accounting for more than half a warrant — and Westpac paid Hager a “honest concerns” properly investigated of OIA requests, the NZ Police and NZ confidential sum as a settlement. by a relevant higher authority, but there Defence Force, were excluded. are no such shield laws here. Since then, Hager has tested the limits How come? of media freedom with his next book In 2015, security guard Lydia Maoate, too. Hit & Run, co-authored with with the backing of her union, told the “Timeliness is not reported for NZ freelance investigative correspondent Dominion Post newspaper her employer Police… [who] introduced a new Jon Stephenson, claimed that six Afghan encouraged staff to cheat in their system for tracking OIAs. A design villagers were killed and 15 others training. The Employment Relations error, now fixed, meant it was not able injured in New Zealand Special Air Authority deemed the Dominion to accurately report the number of Service (NZSAS) raids in retaliation for Post “not an appropriate authority” requests that met the legislated time the death of a New Zealand soldier. to receive the information and her frame,” said the statement.446 dismissal was justified. Exposure of The New Zealand Defence Force activities that are illegal, corrupt or Andre Vance said she found that disputed the claims and has only unsafe are clearly of genuine public “convenient”. “They receive by far more reluctantly released information so interest, but by the end of public OIA requests than any other agency and far, forcing journalists to engage the consultations no media organisations are pretty notorious for mishandling Office of the Ombudsman to secure the had argued for change. them. They first refused to release release of relevant official information. any OIA timeliness data to me when I NZDF withheld much of the requested New Zealand’s State Services requested it, and I haven’t even been information primarily on the grounds Commission is to report back on the able to report that to the SSC,” she said. it may prejudice the security and law later this year and it remains to defence of New Zealand — or jeopardise be seen if any change to the Protected It’s not just journalists who have noticed. relationships with defence allies. Disclosures Act 2000 recognises the role The Open Government Partnership447 of the media. — a coalition of government and civil The government announced an inquiry society organisations — concluded that into the deaths last year. Documents A Bill to tidy up the law on contempt of although the government has not yet released under the Official information court444 is now before Parliament and the “made the ambitious steps towards the Act revealed The NZ Defence Force Privacy Act is also under review. Let’s hope openness and transparency that many has a NZ$2 million budget for the the journalists’ interests in reform these New Zealanders want”. It called for “full inquiry.443 NZDF said its team would laws are put forward more effectively. reform of the Official Information Act” have 11 staff as well as two full-time and said public sector chief’s contracts “surge support personnel” helping with One law under review about which should be tied to open government research and a senior Queens Council journalists have complained long and performance. On March 14, the earning NZ$375 an hour. loud is our once world-leading Official frustrations of Andrea Vance and her information Act. Justice Minister Andrew colleagues at Stuff were laid out starkly In 2017 a new law overhauling powers Little has actually asked for media in an eye-opening special series called of spy agencies created a new offence input before deciding how to proceed. “Redacted”.448 for people passing on classified The current government came to information. The changes made it power in 2017 promising reform after Just one day after that, the terrorist easier to people to make a “protected years of non-compliance, obstruction attack in Christchurch turned the disclosure” to the Inspector-General and delays in dealing with legitimate country, and our media, upside down. of Intelligence and Security. But those requests from the media while their The ghastly deaths and the fallout from who pass information to journalists rivals were in charge. It appointed a new the attack have preoccupied the media may face up to five years in jail. This minister, Clare Curran, with overlapping ever since. Nothing else has seemed has yet to be tested, but it will be brave responsibilities in broadcasting, nearly as important. But as journalists member of the intelligence services digital media, technology and open get to work raising awkward questions who leaks information the media on government. But this joined-up in a new environment, their freedom that basis. Journalists will also have the approach fell apart when the minister to report the truth will take on a whole added worry of possible prosecution was forced out of her portfolios because, new importance. themselves if pressed to reveal sources. ironically, she had arranged off-the- The current government is also books meetings with prospective Colin Peacock is the presenter of Radio exploring whether the law and appointees and Coral Hirschfeld, the New Zealand’s “Mediawatch” program. FREEDOM TO REPORT THE TRUTH TAKES ON A WHOLE NEW IMPORTANCE

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The last print edition of The Cambodia Daily Socheata Hean

ASIA-PACIFIC JOURNALISTS KILLED SINCE MEAA’S 2018 PRESS FREEDOM REPORT (25 April 2018 – 25 April 2019) Afghanistan 18 Bangladesh 1 India 5 Pakistan 3 Philippines 3 Asia Pacific total: 30

province, 29-year-old BBC reporter Ahmad Shah was shot dead while he was PRESS FREEDOM IN on his way home. The safety of journalists and media THE ASIA-PACIFIC workers in Afghanistan remains an ongoing challenge, particularly for those based away from Kabul. According BY ALEXANDRA HEARNE to IFJ research, of the 86 journalists and media workers killed since 1993, almost n calendar 2018, the International rather than acting as a watch dog. 40 percent were non-Kabul based media. Federation of Journalists (IFJ) recorded the highest number In the Philippines the targeting of Despite the safety concerns, the of journalist and media worker Rappler CEO Maria Ressa is a stark Afghan government continues to lag in killings since 2014. In the Asia reminder of the challenging media attempts to address the concerns and IPacific, 32 journalists, editors, drivers, environment. implement concrete action. As noted in camera operators, television reporters previous reports, the Afghan Ministry and broadcasters were brutally Yet, there are small wins that must of Interior Affairs started investigating murdered. be celebrated. In February 2019, the 172 cases of violations of journalists’ Indonesian government revoked the rights more than three years ago. To South Asia was the deadliest region in presidential pardon that was granted date, there has been no practical action the world with 29 killings, 16 of which to the killer of a journalist, keeping for justice. occurred in Afghanistan. the perpetrator in jail for life. In March 2019, four people were arrested for Two journalists were killed in an attack Fifteen journalists lost their lives in trolling and harassing Indian journalist on the offices of Radio Hamsada in targeted shootings or were lethally Barkha Dutt, in a case which is a Telagan, Afghanistan, on February caught in the crossfire. Another 12 died breakthrough for the relentless trolling 6 2019. The two victims were Shafiq as a result of being in the wrong place, and online harassment of journalists. Areya, a reporter, and Rahimullah, the when car bombs detonated or suicide presenter of a social program. Both were bombers unleashed. AFGHANISTAN: On April 25 2018, 10 in their 20s and died on the spot. Simin journalists were murdered. Nine died Hussaini, the editor of Hamsada Radio Yet journalists in the Asia-Pacific face in the capital Kabul in back-to-back Station, confirmed that they did not threats and challenges beyond the suicide attacks. The killer, disguised receive any threats before the attack. killings. Governments are continuing as a journalist, detonated his bomb in the flex their muscle in attempts to the middle of a media scrum that had Journalist Sultan Mohammad Khairkhah silence critical voices and intimidate gathered to report on an initial bomb was shot and killed as he drove to work the media to toe the government line, blast. On the same day, in Eastern Khost on March 17 in Khost, south eastern

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Afghanistan. Khairkhah worked for the Afghan National TV channel and hosted several social programs. He was shot near the police checkpoint in Khost and died in hospital from his injuries.

Photojournalist M Asif Hakimi was among 22 killed in a bomb blast on an election gathering in northern province of Takhar, Afghanistan, on October 13 2018. Hakimi was killed when a motorcycle bomb was detonated around midday targeting the campaign rally of Nazifa Beg, a female candidate from Rustaq district of Takhar.

Two television journalists were killed Gui Minhai, Chinese-Swedish book publisher who has fallen victim to China's and another five injured in a brutal crackdown on publishing. He was arrested on a train to Beijing in the company of twin blast in Kabul on September 5 2018. Journalist Samim Faramarz and Swedish diplomats. I FJ cameraman Ramiz Ahmadi of TOLO News lost their lives as they reported IFJ research for the first IFJ South East to silence critical voices. Yang arrived on at the scene of an earlier suicide attack. Asia Media Freedom Report — Under a flight from the US and was immediately The initial bombing targeted an evening the Autocrats — found that almost all detained on espionage charges. He sporting event at a wrestling gym in the Cambodian journalists felt their work remains under “residential surveillance” Qala-e-Nazer area of Kabul, also known had caused them security concerns. The for “engaging in criminal activities that as the sixth district. The journalists overwhelming majority of Cambodian endangered China’s national security”. were killed when a second explosion, journalists also said that over the Yang is a strong democracy advocate and an hour after the initial blast, is alleged past 12 months government efforts to is prolific online. to have specifically targeted first protect journalists were worsening to responders at the scene. Farmarz had extremely bad, citing the ruling party In February 2019, the Foreign been reporting live from the scene for position as the cause for this. Correspondents’ Club of China (FCCC) TOLO just minutes before he was killed released its annual report based on a in the second blast. The twin attacks The political climate in Cambodia eased survey of its members. The report found killed at least 25 people and injured 80 immediately after the election. Political that working conditions for foreign others. The Islamic State is reported dissidents were released from prison, correspondents in China are quickly as claiming responsibility. Among the although charges remain. In a turn worsening. Surveillance was noted as wounded were five other journalists from previous behaviour, Hun Sen’s one of the key concerns with 48 percent also reporting at the scene of the sports political rhetoric has taken on a more saying that they had been followed club explosion — Amanullah Farhang of conciliatory tone. or their hotel room had been entered 1TV, Khaled Nekzad, Sayer Yunusi and without permission; 22 percent said they Hussain Rastemanish of Khurshid TV, CHINA: Between January 2018 and were aware that authorities had tracked and Jamshid Ahmadi of Maiwand TV. March 2019 the IFJ recorded more than them using public surveillance systems. 130 media violations in China, Hong CAMBODIA: As Cambodia prepared to Kong, Taiwan and Macau, of which 73.5 With the growing crackdown in the go to the polls in July 2018, the first half percent occurred in China. Muslim-majority region of Xinjiang, of the year saw a continued government- FCCC members said that 24 of the 27 led media crackdown. Justification for the A closer look at the violations recorded respondents who had travelled to the government’s behaviour was the usual highlights the key issues for media region had experienced interference argument of maintaining stability and freedom in China. Censorship continues while there, with 19 being asked or social order. But carrying out its highly to impede media freedom and is taking forced to delete data. effective campaign against dissenting on many forms. Websites are blocked, voices also pushed the Cambodian media Weibo accounts are taken down or FIJI: Three journalists with independent, to its limits. content is deleted, traditional media New Zealand-based news and current outlets don’t report on key issues or affairs site Newsroom were arrested in Inevitably journalists were targeted. events and, instead, republish reports Fiji on April 3 2019. Newsroom co- Cambodia’s media is now impeded by from state-owned Xinhua. editor Mark Jennings, Investigations a litany of threats, self-censorship and editor Melanie Reid, and cameraman draconian laws ranging from defamation The extent of the government-led Hayden Aull were detained and held to lese majeste. Media proprietors crackdown was evident in November overnight at the main Suva police station face disruption to online services and 2018, when more than 10,000 social after developer Freesoul Real Estate pressure to toe a government-friendly media accounts were shut down. The accused them of criminal trespass. The line, or risk exorbitant tax bills and law accounts had shared footage or had journalists were released the following suits that carry prison terms. content commentating on social issues. morning and the Fijian Prime Minister Frank Bainimarama has apologised. Between 2017 and the July elections, the The arrest of Australian writer and Overseas Press Club of Cambodia said former Chinese diplomat, Yang Hengjun, New Zealand journalist union E tū’s that the number of foreign journalists in Guangzhou airport on January 19 senior national industrial officer Paul working in Cambodia decreased from 2019 highlighted the extent that the Tolich said the the journalists should 150 to between 15 to 30 by the elections. Chinese authorities would go to in order never have been arrested in the first

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about how any legislation would be implemented and the implications for media freedom. The biggest question remains, how would media outlets report on any report the activities that violate the law, and what would be the penalties on such reporting.

INDIA: The press freedom situation in India is an ongoing concern that was highlighted in 2018 with a disturbing trend of targeted mobile attacks on journalists, with four media workers killed.

The murder of Shujaat Bhukari in Kashmir in June 2018 shows the brutal nature of journalist killings in India. He was shot multiple times, despite having two bodyguards. They were both also killed in the attack as they left his office at Kashmir Daily.

The threats, intimidation and assaults on journalists continued through 2018. In February, officials of the ruling right-wing Bharatiya Janata Party (BJP) officials attacked a journalist in Raipur. In October police attacked a group of journalists in Kashmir as they attempted to cover a clash between security forces and militants. In November a journalist in Manipur was detained under the draconian National Security Act for expressing his views Media unions affiliated the International Federation of Journalists across the Asia- against the leaders of ruling party at the Centre and the State in a Facebook post. Pacific region show their support for Filipino editor Maria Ressa On October 30 2018, videojournalist place. “The journalists were simply Association’s annual Hong Kong Achyutananda Sahu was killed as he engaged in journalistic inquiries about Press Freedom Index found that press covered preparations for upcoming state the impact of development on Malolo freedom in Hong Kong had declined 0.9 elections in Chhattisgargh. Sahu was Island and the actions of the police are points down to 47.1, the lowest level part of a media team from government- another example of Fiji’s intolerance since the index began in 2013. run Doordarshan, embedded with local towards a free and independent press. police. He was killed by crossfire when Despite the apology from Fiji’s Prime On October 5 2018, the Foreign the group came under attack from a Minister, this will have a chilling Correspondents’ Club of Hong Kong Maoist militant group. effect on journalism in the Pacific. vice president and Asia news editor of Journalists need to be able to challenge the Financial Times Victor Mallet was In a separate incident, Chandan the powerful and hold them to account. advised that his work visa renewal had Tiwari, a journalist with Aaj News, This is the hallmark of a free and been refused. The refusal came just a was found unconscious on October 29 democratic society. We urge the Fijian couple of months after Mallet hosted a 2018 and rushed to hospital where he government to support independent lunchtime talk at the FCC Hong Kong was declared deceased. According to journalism rather than maintaining with pro-democracy activist Andy investigations Tiwari had lodged two a climate which supports those who Chan. The talk was widely criticised complaints with police over threats he would seek to suppress it.” with former Hong Kong chief executive had received. Chun-ying Leung questioning if FCC HONG KONG: Of the 132 China media Hong Kong should maintain its lease Even for the journalists who did not face violations recorded by the IFJ between in Hong Kong. Despite widespread harassment, intimidation and attack due January 2018 and March 2019, 31 protest, Mallet left Hong Kong. to their work, the precarious nature of occurred in the autonomous Special their employment was evident in mass Administrative Region of Hong Kong. The proposed National Anthem Law redundancies. On September 29 2018, The key threats to press freedom in — which is a controversial vaguely- the Press Trust of India sacked 297 staff. Hong Kong continue to surround worded Bill that sets out criminal PTI is the largest news agency in India. interference from China and the ability sanctions for unwelcome behaviour of the Hong Kong government to during the playing, and commercial and In a small win, four people were arrested guarantee Hong Kong’s autonomy. other misuse, of China’s March of the in March over trolling and harassment Volunteers anthem — has cast a shadow of journalist Barkha Dutt. The four In 2018, this was challenged on several on press freedom in Hong Kong for the perpetrators were charged under the fronts. The Hong Kong Journalists past 12 months, with many questions Indian Penal Code and IT Act, which

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is seen as a win against the epidemic In the lead up to the elections, the comes at a very important time. It is of trolling and online harassment of Malaysian government brought in the important that its deliberations and journalists in India. 2018 Anti-Fake News Act, which had discussions are widely reported to the become synonymous with the alleged people who live in the region. INDONESIA: A press card is not a cover up of the 1MDB scandal that guarantee of safety for journalists dogged ousted leader Najib Razak. In its “As MEAA has said before, when Clive covering news in Indonesia. first post-election parliamentary sitting Palmer sought to exclude a journalist In April 2018, an online journalist in August 2018, the PH-dominated from The Australian, politicians can’t was covering a demonstration at the lower house passed a bill to repeal the be allowed to pick and choose who can Makassar City Council building, South controversial act. But this faltered in attend their press conferences. It’s ‘one Sulawesi, when he was brutally set upon the upper house by seven votes and it in, all in’,” Strom said. “Prime Minister by authorities, despite holding the card will now be another year before it can Malcolm Turnbull says he ‘regrets’ the and telling the authorities who he was. be brought forward again in accordance ABC is being barred from reporting on with Malaysia’s constitution. the Forum but that ultimately it is a In early 2018, hundreds of protestors matter for the government of Nauru. from the Islamic Defenders Front (FPI) Other moves to abolish laws described That is simply not good enough. This marched on the offices of Tempo in by the PH coalition as “tyrannical” have is an attack on press freedom that our Jakarta, demanding an apology for a not progressed quickly either. Chief government needs to condemn in the caricature the magazine published among these is the 1984 Printing Presses strongest possible terms. Recognising which they claimed mocked firebrand and Publications Act which was used the sovereignty of another nation does cleric and FPI leader Rizieq Shihab. by Mahathir to temporarily revoke the not extend to accepting they have When several editorial team members licences of three newspapers during his the right to prevent free and open met with the representatives of the government’s Operasi Lalang crackdown reporting.” protesters inside the Tempo office, in 1987, which led to the jailing of more instead of having a constructive than 100 activists and politicians. The IFJ said: “Governments, leaders and dialogue, the journalists were politicians must remember the role of threatened and intimidated. NAURU: As Nauru prepared to host the media, and not use their powers to the Pacific Island Forum in September, control and stifle press freedom. The According to the Alliance of Independent it announced on July 2 2018, that it Nauru Government is setting a dangerous Journalists, Indonesia, physical attacks would block the Australian Broadcasting precedent by barring ABC journalists’ were still the biggest threats to the Corporation from attending and from covering the Pacific Island Forum. media, with at least 39 recorded between covering the Forum. The IFJ and MEAA We call for solidarity with our colleagues November 2017 and December 2018. condemned the decision as a blatant in the region to demand the ban be But due to the expansion of social media attack on press freedom. revoked and press freedom guaranteed.” journalists have also become targets of online harassment. A statement by the Nauru Government On July 5, the IFJ issued a letter to said it has blocked the ABC from Nauruan President Waqa urging him The legal pursuit of journalists using covering the Forum, and was refusing to reconsider the ban. IFJ president the 2008 Information and Electronic to issue its journalist visas because of Philippe Leruth wrote: “The role of Transaction Law remains a serious allegations of interference in its politics, the media is to hold those in power to problem. From 2008-2018, at least bias and false reporting. In response, account with free and fair reporting. 14 charges were laid against media ABC’s director of news, analysis and However, decisions such as these violate organisations and journalists under the investigations, Gaven Morris, said: “The the basic universal principles of press law. Nauruan government should not be freedom and only go to harm the image allowed to dictate who fills the positions of Nauru on the world stage. A success story from Indonesia recently in an Australian media pool. It can has been the launch of IndonesianLeaks hardly claim it is ‘welcoming the media’ “The IFJ is concerned that such a — a collaborative approach to if it dictates who that media will be and refusal to grant a visa to a member investigative reporting. The platform, bans Australia’s public broadcaster.” of the Australian media pool sends a which was launched in 2017, enables terrible signal internationally about whistleblowers to anonymously submit On Tuesday, the Nauru Government press freedom in Nauru — particularly crucial documents to multiple media issued a follow-up statement, stating: at the very time when the world’s outlets relating to scandals that involve “We remind the ABC that we — like attention will be focused on the work the public interest. Australia — have every right to refuse a of the Pacific Island leaders as guests visa to any person or organisation that of your country. Such undermining of MALAYSIA: After Barisan Nasional we believe is not of good character, and press freedom standards to a major (BN) lost the May 9 2018 election there that entry into our country is a privilege public and regional broadcaster by your was fresh hope the Malaysian press not a right,” it said. “The Australian government before such a significant would be freed from the legislative media do not decide who enters Nauru.” global audience is a dangerous step shackles it has been under since that would reflect poorly on Nauru well independence in 1963. Then Australian Prime Minister beyond the Asia-Pacific, and is an act of Malcolm Turnbull said the decision by censorship,” Leruth wrote. Press freedom and the removal of the Nauru Government was regrettable, other oppressive security laws were but that it was a matter for Nauru. Following the decision by President cornerstones of the manifesto of the Waqa, the Australian Federal victorious Pakatan Harapan (PH) MEAA Media section president Marcus Parliamentary Press Gallery said that coalition, led by former prime minister Strom said: “Politicians, wherever they the media pool, which was to include an Mahathir Mohamad. are, must accept the role of the media ABC staff member, would be disbanded, to report and scrutinise those in power. saying: “If one cannot go, none will Yet this has not fully materialised. The Forum is a crucial gathering. It go” and “We stand for a free press, not

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Journalists protest press freedom crackdown in India Tanmoy Bhaduri a banned one”. In addition, The Sydney social networks, where the highest Gujranwala and Multan and the Herald Morning Herald, The Age, the New degree of freedom of expression is Group of Publication closed the Herald Zealand Parliamentary Press Gallery, and being practised, the government is monthly. The Pakistan Federal Union of the Daily Post in Vanuatu said that they attacking democracy. The intent and Journalists estimated these additional would not participate in the Forum. character of the government have been closures cost another 2500 jobs. evident through its various decisions NEPAL: The Nepal government has including this one. NPU calls on all the A journalist with the Daily Jang drafted new legislation that will impose stakeholders to fight with determination newspaper was reported abducted from harsh penalties for posting content against this effort of the government.” his home in Karachi in the early hours on social media deemed “improper”. of March 30 2019. The IFJ raised serious The IFJ and its affiliate the Nepal Press The IFJ added: “The proposed law put concerns about the disappearance of Union (NPU) strongly criticised the forward by the Nepal Government is a Matloob Husain Mosavi and demanded proposed legislation and called on the blatant attempt to control and muzzle an investigation. According to reports government to hold wide consultations freedom of expression on social media. the journalist was abducted by two with stakeholders to address key issues. As noted by NPU, freedom of expression dozen people. Masked men climbed is guaranteed in the Nepal Constitution, walls to gain access, locked the rest of The proposed bill is related to the and this must be respected and Matloob’s family in a room and then management and regulation of protected by the government, not abducted Matloob. The men arrived in information technology, which could see weakened by legislation.” several vehicles, including three police individuals who post content deemed by vehicles. Matloob’s family has reported authorities as a PAKISTAN: While Pakistani journalists his abduction to police. or an attack on national sovereignty, remain under threat from attack the fined NPR 1.5million ($A19,030) or latest challenge they are facing is job On April 1 2019, Karachi cameraperson sentenced to five years in jail. security. Ali Mubashir was abducted near his office. According to reports, Ali The bill includes a provision that In December 2018 alone, 2000 media Mubashir, a cameraperson with Abb states no one should be defrauded, workers from the Jang Group of Takk, a privately owned news channel discouraged, discriminated or Newspapers lost their jobs. In one was taken from the carpark of his office discredited through social media. The short announcement, Jang Group shut just two days after Daily Jang journalist proposed law, which will be tabled five newspapers: the Peshawar and Matloob was abducted. by the Ministry of Information and Faisalabad editions of Jang Daily, the Communications Technology, also Karachi-based Urdu-language daily Journalist Sohail Khan was shot and states that social media users will need Awam and English-language Daily News, killed just days after filing a story about to registered. and the Lahore-based Urdu daily Inqibal. drug mafia on October 16 2018. Sohail had just left the District Police Office On February 15 2019 the NPU strongly Around the same time, Century (DPO) in Haripur district of Khyber criticised the draft legislation, stating: Publications’ Urdu daily Express Pakhtunkhwa when he was shot several “By trying to restrict the use of the closed its bureaus in Sukkur, Quetta, times. He died at the scene. He was at the

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DPO filing an application for protection online harassment many face. Women of Rajapaksa, state-controlled media after receiving multiple death threats journalists appear to be easier targets institutions were forcibly taken over. following his report on drug mafia for online attacks. Several have reported Either the editors were asked to step in Pakistan. According to local news, being bombarded with threats on social down or gangs invaded editorial offices. members of the drug mafia killed Sohail media to rape them or their children, or A new set of editors and managers was in retaliation for his reporting. wipe out their families. News websites soon installed. With no delay, they and media organisations critical of started rolling out engineered stories PAPUA NEW GUINEA: Authorities Duterte’s leadership have also been supporting the political coup, portraying and government officials in Papua New hacked and taken down, including the it as a patriotic act of the parties Guinea continue to impede press freedom. NUJP, which has faced multiple attacks. involved. The unfortunate reality was that some of the newly installed editors In August, a female journalist was Edmund Sestoso, a broadcaster in were press freedom champions of yore. punched in the face as she tried to cover Dumaguete City was shot on April 30 a natural disaster unfolding in Baliau 2018. He was critically injured by five During the political crisis, the revival of village. Her attacker also threatened to bullets to his chest and stomach and civil society was particularly throw her camera into the sea. died the following day. Sestoso was a remarkable. Daily were held broadcaster on dyGB 91.7 FM with his in Colombo, organised by independent In November, during the APEC Summit, daily program, Tug-anan. He was on his civil society groups. non-accredited Chinese media were way home after work when he was shot. barred from covering several meetings Following the attack, the gunmen also But while state media had been of Chinese President Xi Jinping and shot the tires of the pedicab which was “taken over” in the coup, the role the Pacific leaders. Space and security going to take Sestoso to hospital. mainstream private media chose to concerns were given as the reasons to play was also highly questionable. bar the media who were then advised to, Dennis Denora was brutally murdered Some mainstream Sinhala news instead, cite reports about the meetings in a brazen attack on June 7 2018, in channels welcomed Rajapaksa as a from China’s state-run Xinhua. the southern Philippines’ region of patriotic leader and glorified the coup. Mindanao. Denora was the publisher These media groups also launched PHILIPPINES: Almost 10 years ago, and columnist of the community paper, personalised attacks against civil society 32 journalists were killed in the single Trends and Times, and an officer of activists as they protested against the deadliest attack on the media. One would the Davao Region Multi-media Group. coup and rejected the extremely biased think the inevitable shock and outrage He was shot by unidentified persons point of view of these channels. The that followed the bloodbath would have near the wet market of Panabo City in absence of independent media has prodded the Philippine government to Davao del Norte. Denora’s colleagues emerged, not for the first time, as a key finally put an end to the media killings acknowledged that he was “fearless” in cause for concern around freedom of that have long made the country one of his commentaries in broadcast and print. expression in Sri Lanka. the most dangerous places in the world to practise journalism. But there has Broadcaster Joey Llama was gunned Broadcaster Swarnavahini TV fired been no let-up in media killings; since down on his way to work on July 20 15 employees for union activity on 1986 more than 185 journalists have 2018 in Legaspi City, Albay, in the March 18 2019. About 270 employees been killed in the Philippines. central Philippines. Llama, a blocktimer had participated in a meeting in the (freelancer) for dwZR radio station, company’s car park with the aim to However the situation in the Philippines was leaving his home at 4am on Friday form a union to fight for better working has become precarious for journalists morning, on his way to host his program conditions. The meeting was scheduled on more fronts, particularly with the at 5.30am. According to local reports, he during staff lunch hour, however at blatant government-led attempt to was shot 14 times by assailants. Llama’s the end of the meeting the gates to the take down the news website Rappler. murder, if found to be work related, office were shut and they were locked Since the Philippines Securities and would be the 12th journalist killed out. They reported the incident to the Exchange Commission rescinded under the Duterte administration. police, but when they were finally able Rapplers’ licence for allegedly violating to access the offices, 15 staff members foreign ownership bans stipulated SRI LANKA: The constitutional crisis found letters informing that they had in the constitution in early 2018, the in late 2018 was the harbinger of a been sacked for “deliberately disrupting government has filed 11 law suits climate of political danger that awaits the business and operations” and for against Rappler and its CEO Maria in 2019 — an election year. On the using the company sound system at Ressa. The lawsuits have including cyber evening of October 26 2018 President an unauthorised gathering. In the past libel for a story that was published in Maithripala Sirisena used his executive 12 months there had been no salary May 2012. The charges were filed under powers to remove Prime Minister Ranil increases, pay was not on time and there the Cybercrime Prevention Act (2012) Wickremesinghe from office, appointing was bias when it came to promotions. which was not legislated until after the in his stead arch rival former president This is the first case of a private media story was published. The Department Mahinda Rajapaksa — in violation of the company unionising in Sri Lanka. of Justice resolution cites the multiple Constitution. Wickremesinghe continued publication rule to validate the charges. to enjoy the support of the majority of Alexandra Hearne is the projects and the Parliament. (On December 16 2018, human rights coordinator for the The other big issue for journalists in the he was restored as prime minister.) International Federation of Journalists Philippines is the incessant trolling and Immediately following the appointment Asia-Pacific SINCE 1986 MORE THAN 185 FILIPINO JOURNALISTS HAVE BEEN KILLED

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the committee has identified work in this area as crucial for the future of THE MEDIA SAFETY journalism.

In November 2018, the MSSF developed a & SOLIDARITY FUND new program of press freedom campaign work for 2019. There is much potential MEAA initiative established Massacre. Five children have graduated for the MSSF to effectively use its in 2005, the Media Safety & from university with a range of funds for smaller scale support to press Solidarity Fund is supported qualifications including computer freedom advocacy in the region, including by donations from Australian science, financial management, producing press freedom reports for journalists and media engineering and teaching. South Asia and South East Asia. personnelA to assist colleagues in the Asia-Pacific region through times of Also in Fiji, MSSF supported Jone Additionally, there would be greater emergency, hardship and war. Ketebaca, the son of Sitiveni Moce who flexibility to produce urgent situation died in 2015 after he succumbed to reports in the region as needs arise. The fund trustees direct the injuries sustained when he was attacked Recent examples include Kashmir, the International Federation of Journalists by soldiers in 2007. Maldives, Cambodia and Malaysia. Asia-Pacific office to implement projects to be funded by the MSSF. Funds to support those orphans have In December 2018, the MSSF come from regular donations from contributed $A1000 to Philippines news In 2017-18 MSSF supported the work Fairfax journalists and from other web site Rappler to support the defence of the IFJ AP’s human rights and safety journalists in Australia and New of its editor Maria Ressa who has been program. Under the program, IFJ AP Zealand. These donations have been persecuted by the Duterte regime. remained a prominent advocate in the made as an annual payroll deduction of region for press freedom and journalists’ the first instalment of increased pay at From January 2019, the fund will no rights and safety. the start of each financial year. longer support the education of the orphans of journalists in Nepal and the In January 2018, the IFJ launched the Over the last few years, the number Philippines. The MSSF committee has 10th China Press Freedom Report, of children needing support in Nepal been contacting partners in the region reviewing this bleak period for freedom has dropped significantly (as journalist to seek their assistance with the orphan of expression. The IFJ recorded more deaths were linked to the civil war that support. than 900 media violations between 2008 ended over 10 years ago). However, the and 2017, more than 30 percent in the number of children needing support To mark UNESCO World Press Freedom Beijing municipality alone. in the Philippines remains constant Day in 2019, MEAA is organising as journalist deaths continue under fundraising events on behalf of the Since 2010, a major focus of the MSSF President Duterte. MSSF. has been to provide financial support to orphans of journalists killed in Nepal Unfortunately, the capacity of the The MSSF’s trustees are Marcus Strom, and the Philippines. This is alongside MSSF to support these children is much the federal MEAA Media section the regular work we do with the reduced as donations from the journalist president; the two national MEAA International Federation of Journalists community and from other fundraising Media section vice-presidents, Karen (IFJ) in campaigns for press freedom and sources has dropped off as numbers of Percy and Michael Janda; two MEAA support for journalists facing immediate journalists employed fulltime at news Media section federal councillors, Ben threats to their safety. outlets like Fairfax have been reduced Butler and Alana Schetzer; and Brent due to redundancy programs. Edwards representing New Zealand’s In 2017-18 in Nepal, MSSF supported 23 journalists union E tū. children with two due to graduate from The MSSF management committee has university at the end of the year. been reviewing ways to make the most Supporters of press freedom are from limited donations. encouraged to make a donation to the In the Philippines, MSSF supported Media Safety & Solidarity Fund via the 68 students — 25 are the children of With increasing challenges to press web site: www.meaa.org/meaa-media/ journalists killed in the 2009 Ampatuan freedom in Australia and in our region, mssf

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ne of the central tenets In a landmark case from 1997, Lange v of a successful liberal Australian Broadcasting Corporation, democracy is press freedom. the High Court said, “(u)nlike the First As voters, we employ our Amendment to the US, which has been elected officials to run the interpreted to confer private rights, Ogovernment on our behalf and, as with our Constitution contains no express all bosses, we have a right to know what right of freedom of communication or they get up to. In any democratic system expression. Within our legal system, worth the title, that happens through communications are free only to the good, sceptical, independent and at extent that they are left unburdened by times aggressive journalism. laws that comply with the Constitution.”

That kind of reporting is inherently In 2008, Channel Nine’s political wary of crafted news releases and editor Laurie Oakes exposed Cabinet staged media events. It is the kind of documents that showed four economic journalism that digs into the inner departments had warned the workings of government, cultivating Government its FuelWatch program sources and relationships beyond the could increase petrol prices. press officers who act as gate-keepers and -doctors. It is the kind of In 2016, a string of leaks revealed that journalism that uses deep sources to the NBN was blowing the budget and expose mismanagement, hypocrisy and had fallen way behind schedule — facts outright corruption. that were hugely embarrassing to the Prime Minister Malcolm Turnbull. It is not always pretty or especially edifying, but it has helped to “keep the And in 2016-17, a series of leaks exposed bastards honest” (to paraphrase the the way Centrelink’s automated debt importance of what I do is enabling late Don Chipp), oil public debate, and recovery system was making crippling democracy… so people know what make Australia one of the most stable, demands of some of the poorest people politicians are doing, so they know prosperous and peaceable nations on in the country. It prompted Centrelink what they are voting for, why they are the planet. It makes sense to protect to warn its staff that any unauthorised voting…” and defend it. communication with the media violated the Crimes Act. Until the early 2000s, Australia Yet surprisingly, Australia has no broadly managed to strike a working explicit constitutional or legal In each of those cases, both the leakers balance between media freedom and protection for media freedom. and the reporters risked breaking government authority, but two key laws that restricted disclosure of forces have helped tip the scale away Although the High Court of Australia government information and protected from the public’s right to know, and ruled that there is an implied freedom national security. Indeed, the security in favour of the government’s natural of political communication inherent in services were called in to track down tendency to secrecy. our system of representative democracy, the sources. Yet in each of them, there press freedom is by no means hard- was a clear public interest in exposing The first is the way the digital wired into our laws in the way that what was happening, and in the end, revolution has damaged news business the Bill of Rights does it in the United after the public rows settled, both models, significantly weakening the States. The First Amendment to the the government and the public were ability of news organisations to pay for US Constitution unequivocally says, arguably better off. the kind of investigative journalism “Congress shall make no law… abridging that holds governments to account. The the freedom of speech, or of the press…” When he retired, Oakes said, “The second is the political pressure to enact

106 | 2019 PRESS FREEDOM REPORT Peter Greste Jay Cronan Fairfax Photos

ever tighter national security legislation In just a few examples from the past that journalists play. in the ongoing War on Terror. Since few years, we have seen Section 2001, Australia has passed 54 separate 35P of the ASIO Act which gives the It isn’t intended to stop or repeal critical pieces of anti-terror legislation — minister the power to keep any security national security legislation; clearly, we arguably more than any other country operation secret forever. There is need to update our laws to cope with on earth. the Data Retention Act which makes a dangerous world. But the Act would it almost impossible for journalists compel our law makers to strike a better Together, those forces have given to protect government sources; the balance between those two essential governments a license to chip away Foreign Fighters Act which potentially functions, making us all both safer and at the space that journalists have criminalises stories covering militant better informed. traditionally been able to operate in, extremists, and most recently, the and in the process reduced transparency Foreign Interference and Espionage Act If the most vital role a government can and accountability. that significantly broadens the scope of play is defending our democracy, surely information defined as “classified”. All enshrining media freedom in law is This is not to suggest that national in some way intrude on media freedom. essential. security laws need to be repealed. Far from it. But without the restraint that That is why my organisation, the Professor Peter Greste is UNESCO chair the First Amendment places on US Alliance for Journalists Freedom, is in journalism and communication at legislators, Australia’s politicians have launching a campaign for a media the University of Queensland, and a had much more scope to pass legislation freedom Act. The Act would act as founding director and spokesperson of that harms the public’s capacity to know, a yard-stick to measure all our laws the Alliance for Journalists’ Freedom and therefore ultimately our democracy. against, to protect the watchdog role (www.journalistsfreedom.com).

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ress freedom is not in the and its agencies extraordinary powers whistleblowers for historic revelations best of health in Australia. to muzzle the media, restrict the flow — seemingly more out of a petulant Attacked by government of information and punish those who sense of trying to wipe away any legislation and an aggressive revealed secrets — particularly secrets lingering government embarrassment judiciary, weakened by that embarrassed the government of the caused by the public discovering the Pharassment and abuse, undermined by day rather than threatened the safety of truth. The Witness K trial over events media organisations that fail to adapt, and the nation. dating back to 2004 is the perfect threatened by assaults both verbal and example. physical emanating both here and abroad. Too often, these laws, because they are drafted under the mantle of “national Then there are the laws such as those It’s becoming increasingly difficult security”, are rushed through the that seek to decrypt communications, to fight for the public’s right to know parliament and passed with bipartisan secretly access journalists’ when so many of those who are meant support. Increasingly, they are poorly telecommunications data to discover to be responsible guardians of public drafted, without foresight for the their confidential sources, and right are doing their best to not only implications of what they are creating, intimidate social media over sharing suppress, shroud and obstruct access to and subject to little or ineffective abhorrent violent material that will also information, but to pursue and punish review. undermine the ability of whistleblowers those who tell the truth. to use social media platforms to expose While laws have been produced recently atrocities and other human rights MEAA has been cataloguing the to protect both public and private abuses. assaults on press freedom since 2001. whistleblowers, they impose criteria In that time there has been a flood of that provides no great comfort or The courts, too, have to take new laws, supposedly in response to genuine protection for a whistleblower responsibility for undermining the the war on terrorism and the need for seeking to expose wrongdoing. And, public’s right to know. The Vincent increased national security, but which in the midst of passing these laws, report has revealed that judges are also included granting government court cases are underway to punish issuing suppression orders too often

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Australia's federal ensuring that the principles of press should enforce the law and prosecute election may bring a freedom are regularly enshrined and those responsible. better approach by protected in legislation. Courts and the government to press media must come together to find a joint Media employers have a responsibility freedom issues solution to the suppression order issue too. They must work to safeguard their that promotes open justice as well as employees from harm and to ensure ensuring the public’s right to know about they have a safe workplace and that, how justice is practised and dispensed. because of the journalism they produce, that they are protected away from work Whistleblowers must not be offered too. Employers must also be mindful of protection and relief in one hand the mental health of their employee and while being spied on using metadata take action to alleviate the stress and retention powers and secret Journalist anxiety that can accompany the work of Information Warrants to hunt them a journalist. down and punish them. Governments have acknowledged the cruel way Our industry must also do more to whistleblowers have been treated in reflect the audiences we serve. Gender the past while exposing wrongdoing — diversity as well as cultural and but that should not be a reason for the religious diversity must be reflected in government to join in by criminalising our news and our newsrooms. It must journalism and prosecuting be reflected in the sources we quote and whistleblowers for telling the truth. the opinions we promote.

Much more needs to be done for The growth and power of digital journalist safety. The brutal murder platforms that has evolved in just a of exiled Saudi journalist Jamal few years amid the digital disruption Khashoggi, the impunity over journalist that hurt traditional media must be killings (including our nine Australian acknowledged. Platforms that are colleagues murdered since 1975), the made wealthy due to the content and pursuit of Filipino editor Maria Ressa traffic provided at no charge by media by a vindictive Duterte regime, and the outlets must give rise to some form of relentless campaign of President Trump compensation and co-operation — one and other world leaders to incite crowds can’t be allowed to destroy the other at by labelling news stories they don’t like the cost of the public’s right to know. as “fake news” — all this must end. MEAA is still calling for a uniform This year will hopefully see some national shield law regime so that semblance of justice for the families journalists privilege is accepted and of the victims of the 2009 Ampatuan recognised and so that journalists will Massacre. The massacre — the single not face contempt of court convictions, greatest atrocity against journalists and all that represents for their where 32 journalists and media workers career as well as their private life, for were gunned down as part of a political observing and maintaining their ethical “hit” — is the perfect example of how obligation to protect the identity of and the orders are being misused, poorly a long history of impunity for the their confidential sources. After South drafted and poorly communicated. The perpetrators of journalist killings is Australia adopted a shield law in 2018, principle of open justice is literally allowed to fester into a monstrous act only Queensland remains as the last being suppressed. But the Vincent of massive proportions. It has taken jurisdiction to hold out — thus creating review has shown the way out of the almost a decade to reach some kind of the threat that borderless publishing will mess and should encourage the media resolution but still many of the those promote jurisdiction shopping where and the judiciary to sit down to create responsible for the crime, including actions will be brought in the Sunshine a national approach where the genuine police, the military and members of the State against journalists from elsewhere need for a suppression order is met alleged mastermind’s clan, are still at in Australia — simply to identify rather than misused. large. Just how many journalists need their sources. Even when Queensland to be killed before governments act on does finally join the other states and It is encouraging that a review of the impunity? territories, as well as the Commonwealth, national uniform defamation regime the tortuous process in creating shield has been undertaken after the regime The role of the fourth estate has to be laws these past few years means that the was found to be so wanting after just 13 accepted by governments. The scrutiny laws are not identical, contain gaps and years of operation. But it is concerning that comes with taking power and failings, and still expose journalists to that a suggestion for change has been public funds and governing in the name potential convictions. A shield with holes to grant corporations the ability to sue of the people, must be an accepted is not much protection at all. — which would simply generate a raft of fact. Too often politicians, Australian lawsuits launched by powerful plaintiffs politicians included, are attacking the There is much to do to unravel the against defendants trying to uphold the media. The message they are sending many attacks on press freedom of recent public’s right to know. the wider community is being taken up. years. We know what the issues are. Now it’s time to fix them. Fixing the problem requires government Journalists are now subjected to waves to reverse the trend of recent years and of cruel abuse and harassment, coupled Mike Dobbie is MEAA Media’s make a commitment to press freedom, with violent threats. Governments communications manager.

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1 UNESCO observatory of killed journalists, 15 Donald J Tump, Twitter, February 21 ABC, February 22 2019 https://www.abc.net.au/ UNESCO, https://en.unesco.org/themes/safety-jour- 2019 https://twitter.com/realDonaldTrump/ news/2019-02-22/doxxing-the-new-weapon-of- nalists/observatory status/1098218016255414272?ref_src=tws- choice-for-trolls/10833428 rc%5Etfw%7Ctwcamp%5Etweetem- 2 “’I can’t breathe’: Saudi journalist Khashog- bed%7Ctwterm%5E1098218016255414272&ref_ 31 ibid gi’s last words - CNN”, Reuters, December 10 2018 url=https%3A%2F%2Fwww.nytimes. https://www.reuters.com/article/us-saudi-khashog- com%2F2019%2F02%2F20%2Fus%2Fpolitics%2F- 32 ibid gi-turkey/i-cant-breathe-saudi-journalist-khashog- new-york-times-trump.html gis-last-words--idUSKBN1O915N 33 “’We’re watching you’: Why doxxing is the 16 Donald J. Trump, Twitter, April 5 2019 new weapon of choice for cyber bullies and trolls”, 3 ibid https://twitter.com/realDonaldTrump/sta- Osman Faruqi and Alex Mann, Background Briefing, tus/1113819627212169219 ABC, February 22 2019 https://www.abc.net.au/ 4 “Khashoggi murder: Trump says he stands news/2019-02-22/doxxing-the-new-weapon-of- by Saudi crown prince”, Al Jazeera, December 12 17 “Journalists are not the enemy”, The Editorial choice-for-trolls/10833428 2018, https://www.aljazeera.com/news/2018/12/ Board, The Boston Globe, August 16 2018 http:// khashoggi-murder-trump-stands-saudi-crown- apps.bostonglobe.com/opinion/graphics/2018/08/ 34 “Support for journalist victims of harassment”, prince-181212073639270.html freepress/ MEAA, March 26 2018 https://www.meaa.org/news/ support-for-journalist-victims-of-harassment/ 5 Eric Trump, Fox News,October 20 18 “White House press secretary uses fake In- 2018, https://twitter.com/LisPower1/sta- fowars video to justify banning CNN reporter”, Aaron 35 “The Australian apologises to ABC over abu- tus/1053321750543564801 Rupar, Vox, November 8 2018 https://www.vox. sive readers’ comments”, Paul Wallbank, Mumbrella, com/2018/11/8/18074966/sarah-sanders-infowars- June 22 2018 https://mumbrella.com.au/the-aus- 6 “Saudi crown prince wanted to go after Jamal cnn-jim-acosta-banned tralian-apologises-to-abc-over-abusive-readers- Khashoggi ‘with a bullet’ – report”, Julian Borger and comments-525002?utm_source=Adestra&utm_me- Bethan McKernan, The Guardian, February 9 2019, 19 “Donald Trump supporter attacks BBC camera dium=email&utm_term=&utm_content=READ%20 https://www.theguardian.com/world/2019/feb/07/ operator during border wall rally”, ABC/AP, February MORE%20%C2%BB&utm_campaign=Mumbrel- jamal-khashoggi-saudi-arabia-turkey-united-na- 13 2019 https://www.abc.net.au/news/2019-02-13/ la%20Daily%20-%2022%2F06%2F18 tions -camera-operator-attacked-at-trump-ral- ly/10805402 36 “Fraser Anning’s ‘final solution’ speech causes 7 “Hundreds of journalists jailed globally staffer to resign”, Claire Bickers, The Courier Mail, Au- becomes the new normal”, Elana Beiser, Committee 20 “United States added to list of most danger- gust 16 2019 https://www.couriermail.com.au/news/ to Protect Journalists, December 13 2018 https:// ous countries for journalists for first time”, Reuters, national/fraser-annings-final-solution-speech-caus- cpj.org/reports/2018/12/journalists-jailed-impris- NBC News, December 19 2019, https://www. es-staffer-to-resign/news-story/1d0d34809381c8d- oned-turkey-china-egypt-saudi-arabia.php nbcnews.com/news/world/united-states-added- 4d7480c12bb65f52c list-most-dangerous-countries-journalists-first- 8 “Ten journalists among 36 killed in Afghan- time-n949676 37 Barrister Steve Stanton, who has previously istan attacks”, Saeed Kamali Dehghan, Akhtar appeared for associates of the Obeid family, to a Mohammad Makoii and Haroon Janjua, The Guard- 21 “PEN America v Trump – Amended Com- journalist reporting on his client’s appearance at ian, May 1 2018 https://www.theguardian.com/ plaint”, protectdemocracy.org, February 6 2019 a NSW ICAC hearing April 18, 2018, https://twitter. world/2018/apr/30/kabul-explosions-hit-city-cen- https://protectdemocracy.org/resource-library/doc- com/Kate_McClymont/status/986427906548105216 tre-attack ument/pen-america-v-trump-amended-complaint/ and https://subscribers.smh.com.au/articles/ note-editor-april-18/ 9 “Journalists Suffer Deadliest Day in Afghani- 22 “4chan trolls flood laid off HuffPost, BuzzFeed stan Since at Least 2002”, Mujib Mashal and Fahim reporters with death threats”, Ben Collins, NBC 38 “ABC Statement”, Minister for Communica- Abed, The New York Times, April 30 2018, https:// News, January 26 2019 https://www.nbcnews.com/ tions Mitch Fifield, September 26 2018 https://www. www.nytimes.com/2018/04/30/world/asia/ka- tech/tech-news/4chan-trolls-flood-laid-- minister.communications.gov.au/minister/mitch-fi- bul-bombing-photographer.html buzzfeed-reporters-death-threats-n963001 field/news/abc-statement

10 “Milo Yiannopoulos, who called for ‘vigilante 23 “Troll Patrol - Using Crowdsourcing, Data Sci- 39 “ABC board members appointed by Fifield squads to start gunning journalists’, has no regrets ence & Machine Learning to Measure Violence and despite being rejected by merit-based panel”, Anne after journalists gunned down”, Dan Satherley, Abuse against Women on Twitter”, Amnesty Interna- Davies, The Guardian, September 28 2018 https:// Newshub, March 19 2019 https://www.newshub. tional, December 2018 https://decoders.amnesty. www.theguardian.com/media/2018/sep/27/abc- co.nz/home/world/2018/06/milo-yiannopoulos- org/projects/troll-patrol/findings#introduction board-members-appointed-by-fifield-despite-being- who-called-for-vigilante-squads-to-start-gunning- rejected-by-merit-based-panel journalists-has-no-regrets-after-journalists-gunned- 24 “Bye, Bitch: Neo-Nazi Blair Cottrell Has Been down.html Permanently Banned By Twitter”, Rob Scott, March 40 “It’s not about Ita - The ABC Act is being 15 2019 https://junkee.com/blair-cottrell-banned- undermined by the government: Paddy Manning, 11 “5 People Dead in Shooting at Maryland’s twitter/197904 The Monthly Today, February 27 2019 https:// Capital Gazette Newsroom”, Sabrina Tavernise, Amy www.themonthly.com.au/today/paddy-man- Harmon and Maya Salam, The New York Times, June 25 David Leyonjhelm, Twitter, 10.52pm June 30 ning/2019/27/2019/1551242387/it-s-not-about-ita 28 2018 https://www.nytimes.com/2018/06/28/us/ 2018 https://twitter.com/DavidLeyonhjelm capital-gazette-annapolis-shooting.html 41 “Minister Mitch Fifield lodges sixth complaint 26 “Right-winger’s violent threats ignored as about the ABC in five months”, Michael Koziol, June 12 Rachael Pacella, Twitter, February 20 police find ‘not enough evidence’”, Nick McKenzie 1 2018, the Sydney Morning Herald https://www. 2019 https://twitter.com/rachaelpacella/ and Richard Baker, The Age, March 20 2019 https:// smh.com.au/politics/federal/minister-mitch-fifield- status/1098197296137863168?ref_src=tws- www.smh.com.au/politics/federal/right-winger-s- lodges-sixth-complaint-about-the-abc-in-five- rc%5Etfw%7Ctwcamp%5Etweetem- violent-threats-ignored-as-police-find-not-enough- months-20180601-p4zizn.html bed%7Ctwterm%5E1098197296137863168&ref_ evidence-20190320-p515xl.html url=https%3A%2F%2Fthehill. 42 “ABC funding slashed by $84m in budget to com%2Fhomenews%2Fmedia%2F430773-capi- 27 “The horrendous abuse that’s just part of my help broadcaster ‘live within their means’”, Amanda tal-gazette-shooting-survivor-trump-tweet-attack- life”, Sherelle Moody, The Courier Mail, January 28 Meade and Patrick Keneally, The Guardian, May ing-the-media-makes-me 2018 https://www.couriermail.com.au/rendezview/ 8 2018 https://www.theguardian.com/austra- the-horrendous-abuse-thats-just-part-of-my-life/ lia-news/2018/may/08/abc-funding-slashed-by- 13 “A week after , news-story/0d6bf1dea6bee09a554cdc1f669f7ea5 84m-in-budget-to-help-broadcaster-live-within- Trump calls 75% of media ‘downright dishon- their-means est’”, William Cummings, USA Today, July 5 2018 28 ibid https://www.usatoday.com/story/news/politics/ 43 “New law ‘will not alter ABC’: Senator Mitch onpolitics/2018/07/05/trump-calls-journalists-real- 29 “Nats to Nats, dust to dust: a year in staffer Fifield”, Kylar Loussikianm, The Daily Telegraph, ly-bad-people/761841002/ scandals”, Charlie Lewis, Crikey, December 17 2018 September 28 2018 https://www.dailytelegraph. https://www.crikey.com.au/2018/12/17/nats-to- com.au/news/nsw/new-law-will-not-alter-abc-sena- 14 “Trump calls CNN reporter a ‘rude, terrible nats-dust-to-dust-a-year-in-staffer-scandals/ tor-mitch-fifield/news-story/0b27076af32d80ceebd- person’ during explosive press conference”, Tucker c05fc5ccd7c2a Higgins, CNBC, November 7 2018 https://www.cnbc. 30 “’We’re watching you’: Why doxxing is the com/2018/11/07/trump-calls-cnn-reporter-a-rude-ter- new weapon of choice for cyber bullies and trolls”, 44 “ABC told to cough up the salaries of its top rible-person-during-explosive-press-conference.html Osman Faruqi and Alex Mann, Background Briefing, earners as Fifield hands One Nation a prize”, Karl

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2019 PRESS FREEDOM REPORT | 111 THE PUBLIC’S RIGHT TO KNOW

82 “Australian court convicts once-powerful April 15 2019 https://www.theguardian.com/austra- 115 “Court and tribunal information: access, dis- Vatican official on sex-abuse-related charges”, lia-news/2019/apr/15/george-pell-contempt-case- closure and publication - Terms of Reference”, NSW The Washington Post, December 12 2018 https:// media-lawyers-call-for-more-details-about-charges Law Reform Commission https://www.lawreform. www.washingtonpost.com/world/austra- justice.nsw.gov.au/Pages/lrc/lrc_current_projects/ lian-court-convicts-once-powerful-vatican-offi- 98 Criminalising Journalism: the MEAA Report Courtinformation/Terms-of-reference.aspx cial-on-sex-abuse-related-charges/2018/12/12/ into the State of Press Freedom in Australia in 2018, da0d909c-fe20-11e8-a17e-162b712e8fc2_story. MEAA, May 3 2018 https://www.meaa.org/download/ 116 Tony Abbott praises “fine man” Cardinal html?noredirect=on&utm_term=.77e4abd4f153 criminalising-journalism-the-meaa-report-into- George Pell, James Massola, The Sydney Morning the-state-of-press-freedom-in-australia-in-2018/ Herald, June 29-30 2017 https://www.smh.com.au/ 83 “An Australian court’s gag order is no and The Chilling Effect – the report into the State politics/federal/tony-abbott-praises-fine-man-cardi- match for the Internet, as word gets out about of Press Freedom in Australia in 2017, MEAA, May 3 nal-george-pell-20170629-gx17uk.html prominent cardinal’s conviction”, Paul Farhi, The 2017 https://www.meaa.org/download/the-chilling- Washington Post, December 13 2018 https:// effect-the-report-into-the-state-of-press-freedom- 117 “Five times guilty: how George Pell’s www.washingtonpost.com/lifestyle/style/ in-australia-in-2017/ and Criminalising the Truth, child-abusing past caught up with him in courtroom an-australian-courts-gag-order-is-no-match- Suppressing the Right to Know, MEAA’s annual 4.3”, Melissa Davey, The Guardian, February 25 2019 for-the-internet-as-word-gets-out-about-promi- report into the state of press freedom in Australia https://www.theguardian.com/australia-news/2019/ nent-cardinals-conviction/2018/12/13/5137005c- in 2016, MEAA, May 3 2016 https://www.meaa.org/ feb/26/five-times-guilty-how-george-pells-child- fef5-11e8-83c0-b06139e540e5_story. download/press-freedom-report-2016/ abusing-past-caught-up-with-him-in-courtroom-43 html?noredirect=on&utm_term=.18770937f510 99 Open Courts Act Review, The Hon. 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174 Ibid 186 Explanatory Memorandum, Telecommunica- June 14 2018 https://www.afr.com/news/rebel-wil- tions and Other Legislation Amendment (Assistance son-defamation-damages-slashed-20180614-h11d2y 175 Nick Feik, “Scott Morrison’s response to claims and Access) Bill 2018, 10. of refugees’ molestation, self-harm is immoral, 203 “Rebel Wilson’s legal battle ends as High Court unjust,” Sydney Morning Herald, 20 November 2014, 187 “Chau Chak Wing wins defamation case rejects appeal over defamation payout” Elizabeth available at https://www.smh.com.au/opinion/scott- against The Sydney Morning Herald”, Michaela Byrne and staff, ABC, November 16 2018 https:// morrisons-response-to-claims-of-refugees-molesta- Whitbourn, The Sydney Morning Herald, February 22 www.abc.net.au/news/2018-11-16/rebel-wilson-los- tion-selfharm-is-immoral-unjust-20141120-11q8bo. 2019 https://www.smh.com.au/national/chau-chak- es-high-court-bid/10503644 html (accessed 22 March 2019). wing-wins-loses-defamation-case-against-fairfax- 20190222-p50zm1.html 204 Review of Model Defamation Provisions, 176 See Nicole Hasham, “Federal Government Department of Justice, NSW Government, February asks the Australian Federal Police to find Nauru 188 “MEAA says defamation judgement confirms 26 2019 https://www.justice.nsw.gov.au/defama- whistleblowers,” Sydney Morning Herald, 2 October need for law overhaul”, MEAA, February 22 2019 tionreview 2015, available at https://www.smh.com.au/ https://www.meaa.org/news/meaa-says-defama- politics/federal/federal-government-asks-austra- tion-judgement-confirms-need-for-law-overhaul/ 205 ibid lian-federal-police-to-find-nauru-whistleblow- ers-20150930-gjyj0i.html (accessed 22 March 2019); 189 ibid 206 MEAA Journalist Code of Ethics, MEAA https:// Paul Farrell, “Journalists reporting on asylum seek- www.meaa.org/meaa-media/code-of-ethics/ ers referred to Australian Police,” The Guardian, 22 190 “How Australia Became the Defamation January 2015, available at https://www.theguardian. 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Bill) – the Encryption Bill, MEAA, October 19 2018 201 Criminalising Journalism: the MEAA Report https://www.meaa.org/download/meaa-sub- 184 Explanatory Memorandum Telecommunica- into the State of Press Freedom in Australia in 2018, mission-on-telecommunications-and-oth- tions (Interception and Access) Amendment (Data MEAA, May 3 2018 https://www.meaa.org/download/ er-legislation-amendment-assistance-and-ac- Retention) Act 2014 (Cth), 19. criminalising-journalism-the-meaa-report-into-the- cess-bill-2018-the-assistance-and-access-bill/ state-of-press-freedom-in-australia-in-2018/ 185 Explanatory Memorandum, Telecommunica- 219 “Government must listen to concerns on tions and Other Legislation Amendment (Assistance 202 “Rebel Wilson defamation damages slashed”, encryption legislation - MEAA”, MEAA, December 2 and Access) Bill 2018, 10. Michael Pelly, The Australian Financial Review, 2018 https://www.meaa.org/mediaroom/govern-

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ment-must-listen-to-concerns-on-encryption-legis- https://www.meaa.org/mediaroom/news-corp-staff- 253 Leading for Change: A blueprint for cultural di- lation-meaa/ shown-little-respect-in-latest-job-cut-announce- versity and inclusive leadership revisited, Australian ment/ Human Rights Commission, April 2018 https://www. 220 Andrew Hastie MP, Hansard, House of Repre- humanrights.gov.au/sites/default/files/document/ sentatives, February 12 2019 https://www.aph.gov. 235 “Local coverage to suffer as ABC cuts jour- publication/Leading%20for%20Change_Blue- au/Parliamentary_Business/Hansard/Hansard_Dis- nalistic experience”, MEAA, April 30 2018 https:// print2018_FINAL_Web.pdf play?bid=chamber/hansardr/07129367-a45a-448c- www.meaa.org/mediaroom/local-coverage-to-suf- b34c-f10d11b0374a/&sid=0217 fer-as-abc-cuts-journalistic-experience/ 254 “Average media worker is a male hipster, report warns lack of diversity is harming industry”, 221 Mark Dreyfus MP, Hansard, House of Repre- 236 “AAP to cut 25 editorial jobs”, MEAA June 5 Peter Ryan, ABC June 7 2016 https://www.abc.net. sentatives, February 12 2019 https://www.aph.gov. 2018 https://www.meaa.org/mediaroom/aap-to-cut- au/news/2016-06-06/media-diversity-report-aver- au/Parliamentary_Business/Hansard/Hansard_Dis- 25-editorial-jobs age-worker-is-male-hipster/7481678 play?bid=chamber/hansardr/07129367-a45a-448c- b34c-f10d11b0374a/&sid=0217 237 “Support floods in for AAP journos after job 255 “Sydney more Asian than European”, Rose cuts announced”, MEAA, June 7 2018 https://www. Brennan and Keely McDonough, The Daily Tele- 222 “New encryption laws threaten journalism: meaa.org/news/supports-floods-in-for-aap-journos- graph, June 27 2017 https://www.dailytelegraph. tech experts” Sybilla Gross, Melbourne Press Club, after-job-cuts-announced/ com.au/news/nsw/melbourne-growing-fast- March 21 2019 https://www.melbournepressclub. er-than-sydney/news-story/6661739246c6b- com/article/new-encryption-laws-threaten-journal- 238 “Community News Group WA closes five mast- 2ca9202e75372718933 ism--tech-experts heads”, MEAA, August 10 2018 https://www.meaa. org/news/community-newspapers-close-five-mast- 256 “Last drinks in Lakemba: Tim Blair takes 223 ibid heads/ a look inside Sydney’s Muslim Land”, Tim Blair, The Daily Telegraph, August 17 2014 https://www. 224 ibid 239 “Australia’s Gender Pay Gap Statistics”, dailytelegraph.com.au/news/nsw/last-drinks-in- Workplace Gender Equality Agency, February 22 lakemba-tim-blair-takes-a-look-inside-sydneys-mus- 225 “Labor would change encryption laws”, Bo 2019 https://www.wgea.gov.au/data/fact-sheets/ lim-land/news-story/10ff3f32ee52998fb7b5ba44f- Seo, The Australian Financial Review, March 27 2019 -gender-pay-gap-statistics c4ab62f https://www.afr.com/technology/web/security/ labor-government-would-change-encryption-laws- 240 “National gender pay gap hits record low”, 257 “’A 27-year-old white male who lives in Bondi’: 20190327-p517xg Workplace Gender Equality Agency, February 21 the face of Australian media”, Alex McKinnon, The 2019 https://www.wgea.gov.au/newsroom/me- Feed, SBS, April 12 2018 https://www.sbs.com.au/ 226 “The Post and Pelton: How The Press dia-releases/national-gender-pay-gap-hits-record- news/the-feed/a-27-year-old-white-male-who-lives- Looks At National Security”, Benjamin C. Bradlee, low in-bondi-the-face-of-australian-media The Washington Post, June 8 1986 https://www. washingtonpost.com/archive/opinions/1986/06/08/ 241 2019 Women for Media Report: You can’t be 258 “Channel Seven in breach for Sunrise segment the-post-and-pelton-how-the-press-looks-at-nation- what you can’t see, Jenna Price with Anne Maree on Indigenous children”, Australian Communications al-security/e7bde38e-b1e3-40ea-be87-7c9dc7bae- Payne, Women’s Leadership Institute Australia, April and Media Authority, September 4 2018 https:// a7b/?noredirect=on&utm_term=.ec062e331a3b 4 2019 https://www.wlia.org.au/2019-women-for- www.acma.gov.au/theACMA/channel-seven-in- media-report breach-for-sunrise-segment-on-indigenous-children 227 “Sweeping foreign interference and spying laws pass Senate”, Gareth Hutchens, June 29 2018 242 ibid 259 “Seven Is Being Sued Over That “Sunrise” https://www.theguardian.com/australia-news/2018/ Stolen Generations Panel Discussion”, Lane Sainty, jun/29/sweeping-foreign-interference-and-spy- 243 “Closing the super gap” MEAA, May 28 2018 BuzzFeed News, April 5 2019 https://www.buzzfeed. ing-laws-pass-senate https://www.meaa.org/news/closing-the-super-gap/ com/lanesainty/sunrise-stolen-generations-defa- mation-panel?utm_source=dynamic&utm_cam- 228 Criminalising Journalism: the MEAA Report 244 “Equality for female staff in the media: media paign=bfsharetwitter into the State of Press Freedom in Australia in 2018, leaders take action!”, IFJ, March 8 2019 https:// MEAA, May 3 2018 https://www.meaa.org/download/ www.ifj.org/media-centre/news/detail/category/ 260 ibid criminalising-journalism-the-meaa-report-into-the- gender-equality/article/equality-for-female-staff-in- state-of-press-freedom-in-australia-in-2018/ the-media-media-leaders-take-action.html 261 “Sunrise breached racial contempt rules with Indigenous children discussion – watchdog”, 229 Joint Media Organisations submission on Na- 245 “IFJ calls for stronger female representation Amanda Meade, The Guardian, September 4 2018 tional Security Legislation Amendment (Espionage in the media and unions” IFJ Asia-Pacific, March 8 https://www.theguardian.com/media/2018/sep/04/ and Foreign Interference) Bill 2017, submission, 2019 https://www.ifj.org/media-centre/news/detail/ sunrise-breached-racial-contempt-rules-discus- ARTK, MEAA January 23 2018 https://www.meaa. category/press-releases/article/ifj-calls-for-stronger- sion-indigenous-children-watchdog org/download/joint-media-organisations-sub- female-representation-in-the-media-and-unions. mission-on-national-security-legislation-amend- html 262 “Investigation report no. BI-363” Australian ment-espionage-and-foreign-interference-bill-2017 Communications and Media Authority, August 8 / and Joint media organisations 2nd supplementary 246 Mates over Merit? The Women in Media 2018 https://www.acma.gov.au/-/media/Broadcast- submission on the Espionage Bill – 180313, ARTK, Report – A study of gender differences in Australian, ing-Investigations/Investigation-reports/TV-inves- MEAA, March 14 2018 https://www.meaa.org/down- June 1 2016 media http://www.womeninmedia. tigations/Word-document-2018/BI-402-Tonightly- load/joint-media-organisations-2nd-supplementa- net/wp-content/uploads/2017/10/Mates-Over-Mer- docx.docx?la=en ry-submission-on-the-espionage-bill-1803013/ it_full-report.pdf 263 “Sunrise was called out for disgraceful report- 230 “Review of the National Security Legislation 247 Mates Over Merit: The Women In Media ing on Indigenous children. That’s not censorship”, Amendment (Espionage and Foreign Interference) Report, Women in Media, June 1 2016 http://www. Shannon Dodson, The Guardian, September 5 2018 Bill 2017”, Parliament of Australia https://www.aph. womeninmedia.net/research/ https://www.theguardian.com/commentisfree/2018/ gov.au/Parliamentary_Business/Committees/Joint/ sep/05/we-are-not-your-controversy-magnet-our- Intelligence_and_Security/EspionageFInterferencev 248 MEAA Journalist Code of Ethics, MEAA, https:// lives-are-affected-by-bad-reporting www.meaa.org/meaa-media/code-of-ethics/ 231 “BuzzFeed job cuts highlight crisis facing jour- 264 “Seven Is Being Sued Over That “Sunrise” nalism worldwide”, MEAA, January 30 2019 https:// 249 “Australian TV is a snowfield of white faces, Stolen Generations Panel Discussion”, Lane Sainty, www.meaa.org/news/buzzfeed-job-cuts-high- hears Sydney launch of Media Diversity Australia”, BuzzFeed News, April 5 2019 https://www.buzzfeed. light-crisis-facing-journalism-worldwide/ Paul Wallbank, Mumbrella, October 31 https://mum- com/lanesainty/sunrise-stolen-generations-defa- brella.com.au/australian-tv-snowfield-white-fac- mation-panel?utm_source=dynamic&utm_cam- 232 “Good Jobs in Digital Media”, MEAA https:// es-hears-sydney-launch-media-diversity-austra- paign=bfsharetwitter www.meaa.org/campaigns/good-jobs-in-digital-me- lia-480997 dia/ 265 ibid 250 ibid 233 “Nine’s redundancies at Fairfax web sites”, 266 “Sonia Kruger ‘vilified’ Muslims in Today show MEAA December 11 2018 https://www.meaa.org/ 251 ibid segment”, Michaela Whitbourn, The Sydney Morning news/redundancies-at-fairfax-web-sites/ Herald, February 15 2018 https://www.smh.com.au/ 252 Media Diversity Australia https://www. entertainment/tv-and-radio/sonia-kruger-vilified- 234 “News Corp staff shown little respect in latest mediadiversityaustralia.org/media-diversity-walk- muslims-in-today-show-segment-20190215-p50y11. job cut announcement”, MEAA, September 14 2018 ley-award html

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267 Ekermawi v Australia Pty Lim- help broadcaster ‘live within their means’”, Amanda with%20attachments.pdf;fileType=applica- ited [2019] NSWCATAD 29, Civil and Administrative Meade and Patrick Keneally, The Guardian, May tion%2Fpdf#search=%22publications/tabledpa- Tribunal 8 2018 https://www.theguardian.com/austra- pers/8b8fd2f1-e0ba-4bc4-8b36-69a8933cb4ef%22 lia-news/2018/may/08/abc-funding-slashed-by- New South Wales, February 15 2019 https://www. 84m-in-budget-to-help-broadcaster-live-within- 298 “Mike Mrdak’s ABC review: Milne told Guthrie caselaw.nsw.gov.au/decision/5c6481bee4b0196ee- their-means to sack ABC journalists of his own accord”, Stephen a4045ea Easton, The Mandarin, October 15 2018 https://www. 282 “ABC has shed 1,012 jobs since 2014, Senate themandarin.com.au/99962-mike-mrdaks-abc-re- 268 “Sonia Kruger ‘vilified’ Muslims in Today show estimates told”, Amande Meade, The Guardian May view-milne-told-guthrie-to-sack-abc-journalists-of- segment”, Michaela Whitbourn, The Sydney Morning 23 2018 https://www.theguardian.com/media/2018/ his-own-accord/ Herald, February 15 2018 https://www.smh.com.au/ may/24/abc-has-shed-1012-jobs-since-2014-senate- entertainment/tv-and-radio/sonia-kruger-vilified- estimates-told 299 ibid muslims-in-today-show-segment-20190215-p50y11. html 283 “Labor announcement on ABC funding a good 300 “Prime Minister describes Ita Buttrose as ‘ex- start”, MEAA, June 12 2018 https://www.meaa.org/ traordinary’ amid speculation she could be new ABC 269 Ekermawi v Nine Network Australia Pty Lim- mediaroom/labor-announcement-on-abc-funding- chair”, Jade Macmillan and Matthew Doran, Febru- ited [2019] NSWCATAD 29, Civil and Administrative a-good-start/ ary 25 2019 https://www.abc.net.au/news/2019-02- Tribunal 25/pm-says-ita-buttrose-extraordinary-amid-abc- 284 “Labor announcement on ABC funding a good chair-speculation/10845344 New South Wales, February 15 2019 https://www. start”, MEAA, June 12 2018 https://www.meaa.org/ caselaw.nsw.gov.au/decision/5c6481bee4b0196ee- mediaroom/labor-announcement-on-abc-funding- 301 “Who is new ABC chair Ita Buttrose and how a4045ea a-good-start/ did she get the top job?”, Yasmin Jeffrey and staff, ABC February 28 2019 https://www.abc.net.au/ 270 “As the Christchurch shootings unfolded, I 285 “Commercial interests out to get the ABC”, news/2019-02-28/ita-buttrose-abc-chair-announce- knew I had to quit my job at Sky News”, Rashna Far- Justin Milne, The Sydney Morning Herald, May 30 ment-who-is-media-veteran/10855214 rukh, ABC, March 18 2018 https://www.abc.net.au/ 2018 https://www.smh.com.au/national/commer- news/2019-03-19/sky-news-christchurch-mosque- cial-interests-out-to-get-the-abc-20180530-p4zicj. 302 “Ita Buttrose to be named new ABC chair, end- shooting-live-stream/10912844 html ing months of leadership uncertainty at the public broadcaster”, Matthew Doran, ABC February 27 2019 271 “Sky News Australia CEO statement”, Paul 286 “Message from David Anderson on the https://www.abc.net.au/news/2019-02-27/cabinet- Whittaker, Sky News Australia, March 17 2019 Federal Budget”, ABC, April 3 2019 https://about. appoints-ita-buttrose-as-new-abc-chair/10849154 https://www.skynews.com.au/details/5c8de- abc.net.au/statements/message-from-david-ander- 48f23eec6001b74720d son-on-the-federal-budget/ 303 “MEAA statement to the inquiry into political interference in the ABC”, MEAA, March 12 2019 272 “As the Christchurch shootings unfolded, I 287 ibid https://www.meaa.org/mediaroom/meaa-state- knew I had to quit my job at Sky News”, Rashna Far- ment-to-the-inquiry-into-political-interfer- rukh, ABC, March 18 2018 https://www.abc.net.au/ 288 “Federal Budget 2019: Winners and losers”, ence-at-the-abc/ news/2019-03-19/sky-news-christchurch-mosque- Jackson Gothe-Snape, April 2 2019 https://www.abc. shooting-live-stream/10912844 net.au/news/2019-04-02/federal-budget-2019-win- 304 The allegations of political interference in ners-and-losers/10939098 the Australian Broadcasting Corporation (ABC), 273 “The Drum”, ABC, Monday March 18 2018 Senate Standing Committees On Environment and https://www.abc.net.au/tv/programs/drum/ 289 “Liberal Party council votes to sell off the ABC Communications, April 1 2019 https://www.aph.gov. and move Australian embassy to Jerusalem”, David au/Parliamentary_Business/Committees/Senate/ 274 @lydia_shelly, @SaraSalehOz, @RandaA- Crowe, The Sydney Morning Herald, June 16 2018 Environment_and_Communications/ABCInterferen- Fattah, @HananDover1, @DsSayed, Twitter, March https://www.smh.com.au/politics/federal/liberal- ceAllegations/Report 18 2019 https://twitter.com/lydia_shelly/sta- party-council-votes-to-sell-off-the-abc-20180616- tus/1107485566172450817 p4zlut.html 305 “Media union urges swift action on ABC inqui- ry recommendations”, MEAA, April 1 2019 https:// 275 https://www.meaa.org/meaa-media/code-of- 290 “Mitch Fifield, the IPA and the ABC”, Mike www.meaa.org/mediaroom/media-union-urg- ethics/ Seccombe, The Saturday Paper, June 9-15 2018 es-swift-action-on-abc-inquiry-recommendations/ https://www.thesaturdaypaper.com.au/news/ 276 “ACCC releases preliminary report into Goo- politics/2018/06/09/mitch-fifield-the-ipa-and-the- 306 Australian Broadcasting Corporation Amend- gle, Facebook and Australian news and advertising”, abc/15284664006345 ment (Fair and Balanced) Bill 2017, Senate, https:// Australian Competition & Consumer Commission, www.aph.gov.au/Parliamentary_Business/Bills_Leg- December 210 2018 ACCC releases preliminary re- 291 “What we are looking for from the next ABC islation/Bills_Search_Results/Result?bId=s1095 port into Google, Facebook and Australian news and boss”, MEAA, September 24 2018 https://www.meaa. advertising https://www.accc.gov.au/media-release/ org/news/what-we-are-looking-for-from-the-next- 307 Australian Broadcasting Corporation Amend- accc-releases-preliminary-report-into-google-face- abc-boss/ ment (Fair and Balanced) Bill 2017 - final report, book-and-australian-news-and-advertising Senate Standing Committee on Environment and 292 “ABC chairman Justin Milne must consider Communications, February 16 2018 https://www. 277 “Digital platforms inquiry”, ACCC https://www. his future”, MEAA, September 26 2018 https://www. aph.gov.au/Parliamentary_Business/Committees/ accc.gov.au/about-us/inquiries/digital-platforms-in- meaa.org/download/abc-chairman-justin-milne- Senate/Environment_and_Communications/ABC- quiry must-consider-his-future/ FairandBalancedBil/Final_Report

278 “ACCC releases preliminary report into Goo- 293 ibid 308 “ABC, SBS may be forced to better justify gle, Facebook and Australian news and advertising”, funding, competitive neutrality inquiry finds”, Australian Competition & Consumer Commission, 294 “Resolutions passed at ABC staff meetings”, Max Mason, The Australian Financial Review, December 210 2018 ACCC releases preliminary re- MEAA, September 26 2018 https://www.meaa.org/ December 12 2018 https://www.afr.com/business/ port into Google, Facebook and Australian news and news/resolutions-passed-at-abc-staff-meetings/ media-and-/tv/abc-sbs-may-be-forced-to- advertising https://www.accc.gov.au/media-release/ better-justify-funding-competitive-neutrality-inqui- accc-releases-preliminary-report-into-google-face- 295 “ABC leadership crisis demands full public ry-finds-20181212-h190rq book-and-australian-news-and-advertising inquiry”, MEAA, September 27 2018 https://www. meaa.org/mediaroom/abc-leadership-crisis-de- 309 “Inquiry into the competitive neutrality of 279 “MEAA response to preliminary recommen- mands-full-public-inquiry-2/ Australia’s national broadcasters”, media release, dations of ACCC digital platforms inquiry”, MEAA Senator Mitch Fifield, Minister for Communications, February 15 2019 https://www.meaa.org/mediar- 296 ibid March 29 2018 http://mitchfifield.com/Media/ oom/meaa-response-to-preliminary-recommenda- MediaReleases/tabid/70/articleType/ArticleView/ tions-of-accc-digital-platforms-inquiry/ 297 Inquiry into allegations relating to the ABC articleId/1508/Inquiry-into-the-competitive-neutral- - Report to the Minister for Communications and ity-of-Australias-national-broadcasters.aspx 280 “ MEAA says cuts to ABC “dangerous and the Arts from the Secretary of the Department irresponsible”, MEAA, May 9 2018 https://www.meaa. of Communications and the Arts, Parliament 310 MEAA submission to the inquiry into the com- org/news/meaa-says-cuts-to-abc-dangerous-and- of Australia, October 11 2018 https://parlinfo. petitive neutraqlity of the national broadcasters, irresponsible/ aph.gov.au/parlInfo/download/publications/ MEAA, June 2018 https://www.meaa.org/download/ tabledpapers/8b8fd2f1-e0ba-4bc4-8b36-69a8933c- meaas-submission-to-competitive-neutrality-inqui- 281 “ABC funding slashed by $84m in budget to b4ef/upload_pdf/abc%20-%20statement%20 ry-180622/

116 | 2019 PRESS FREEDOM REPORT REFERENCES

311 “ABC/SBS Competitive Neutrality Inquiry Re- 328 Fair Go Fairfax, Latest News, MEAA https:// ary-December-2014-Case-List-FINAL.pdf leased”, Minister for Communications Mitch Fifield, www.meaa.org/campaigns/fair-go-fairfax/ December 12 2018 https://www.minister.com- 346 “Caselist” Pen International Writers in Prison munications.gov.au/minister/mitch-fifield/news/ 329 “ACCC approval of Nine’s takeover of Fairfax a Committee, January-December 2017 https://pen-in- abcsbs-competitive-neutrality-inquiry-released body blow to journalism”, MEAA, November 8 2018 ternational.org/app/uploads/PEN-CaseList_2017- https://www.meaa.org/news/accc-approval-of- FULL-v2-1UP.pdf 312 “ABC and SBS are not distorting media mar- nines-takeover-of-fairfax-a-body-blow-to-journal- ket, government inquiry finds”, Michelle Grattan, The ism/ 347 ibid Conversation, December 12 2018 https://theconver- sation.com/abc-and-sbs-are-not-distorting-media- 330 “Nine’s redundancies at Fairfax web sites”, 348 “Free Behrouz”, MEAA, March 2019 https:// market-government-inquiry-finds-108690 MEAA, December 11 2018 https://www.meaa.org/ www.meaa.org/campaigns/free-behrouz/ news/redundancies-at-fairfax-web-sites/ 313 ibid 349 ibid 331 “Nine management opens offers for Fairfax 314 “ABC, SBS may be forced to better justify ACM group”, MEAA, March 4 2019 https://www.meaa. 350 ibid funding, competitive neutrality inquiry finds”, org/news/nine-management-opens-offers-for-fair- Max Mason, The Australian Financial Review, fax-acm-group/ 351 “On Human Rights Day – Take Action for December 12 2018 https://www.afr.com/business/ journalist Behrouz Boochani, stranded on Manus media-and-marketing/tv/abc-sbs-may-be-forced-to- 332 “Criminalising the Truth, Suppressing the Island”, PEN International, December 7 2017 https:// better-justify-funding-competitive-neutrality-inqui- Right to Know, MEAA’s annual report into the state pen-international.org/news/on-human-rights-day- ry-finds-20181212-h190rq of press freedom in Australia in 2016”, MEAA, May 3 take-action-for-journalist-behrouz-boochani-strand- 2016 https://www.meaa.org/download/press-free- ed-on-manus-island 315 “Fierce, independent spirit of Fairfax spurred dom-report-2016/ on by its storied history”, Deborah Snow, The Sydney 352 ibid Morning Herald, July 26 2018 https://www.smh.com. 333 ibid au/business/companies/spirit-of-fairfax-spurred-on- 353 “Behrouz Boochani’s literary prize cements by-its-storied-history-20180726-p4ztv0.html 334 “Caselist” Pen International Writers in Prison his status as an Australian writer”, Keyvan Allahyri Committee, January-December 2014 https://pen-in- and Paul Rae, The Conversation, February 1 2019 316 “MEAA rejects Nine’s takeover of Fairfax”, ternational.org/app/uploads/archive/2015/05/Janu- https://theconversation.com/behrouz-boochan- MEAA, July 26 2018 https://www.meaa.org/news/ ary-December-2014-Case-List-FINAL.pdf is-literary-prize-cements-his-status-as-an-austra- meaa-rejects-nines-takeover-of-fairfax/ lian-writer-110986 335 “Reporting from Inside a Refugee Detention 317 Fairfax Media Charter of Editorial Indepen- Centre”, Andy Hazel, Inter Press Service News Agen- 354 “Behrouz Boochani wins Amnesty Interna- dence - as endorsed by Fairfax mastheads between cy, April 3 2017 http://www.ipsnews.net/2016/12/ tional award for writing from Manus”, Guardian March 28 1988 through to February 21 1991, The reporting-from-inside-a-refugee-detention-centre/ staff, The Guardian November 1 2017 https://web. Sydney Morning Herald, June 19 2012 https://www. archive.org/web/20190119020511/https://www. smh.com.au/national/fairfax-media-charter-of-edi- 336 “Behrouz”, Lucy Popescu, Literary Review, theguardian.com/media/2017/nov/02/behrouz-boo- torial-independence-20120619-20l4t.html December 2016 https://literaryreview.co.uk/beh- chani-wins-amnesty-international-award-for-writ- rouz-boochani ing-from-manus 318 Fair Go Fairfax, Latest News, MEAA https:// www.meaa.org/campaigns/fair-go-fairfax/ 337 “On Human Rights Day – Take Action for 355 “MEAA makes formal complaint over treat- journalist Behrouz Boochani, stranded on Manus ment of Manus refugee journalist”, MEAA, November 319 ibid Island”, PEN International, December 7 2017 https:// 24 2017 https://www.meaa.org/mediaroom/meaa- pen-international.org/news/on-human-rights-day- makes-formal-complaint-over-treatment-of-manus- 320 “Consumer watchdog to consider ‘quality of take-action-for-journalist-behrouz-boochani-strand- refugee-journalist/ news’ in Nine-Fairfax deal”, John McDuling, The Age, ed-on-manus-island July 30 2018 https://www.theage.com.au/business/ 356 “On Human Rights Day – Take Action for companies/consumer-watchdog-to-consider-qual- 338 “Day of the Imprisoned Writer: Behrouz Boo- journalist Behrouz Boochani, stranded on Manus ity-of-news-in-nine-fairfax-deal-20180730-p4zugg. chani – detained on Manus Island:, Ben Doherty, The Island”, PEN International, December 7 2017 https:// html Guardian, November 15 2015 https://www.theguard- pen-international.org/news/on-human-rights-day- ian.com/books/2015/nov/15/day-of-the-imprisoned- take-action-for-journalist-behrouz-boochani-strand- 321 Fair Go Fairfax, Latest News, MEAA https:// writer-behrouz-bouchani-detained-on-manus-island ed-on-manus-island www.meaa.org/campaigns/fair-go-fairfax/ 339 “Free Behrouz”, MEAA, March 2019 https:// 357 “Free Behrouz”, MEAA, March 2019 https:// 322 “Fairfax-Nine takeover: watchdog prom- www.meaa.org/campaigns/free-behrouz/ www.meaa.org/campaigns/free-behrouz/ ises ‘long review’ focusing on media diversity”, Anne Davies, The Guardian, July 31 2018 https:// 340 “On Human Rights Day – Take Action for 358 “Writers and journalists call for award-win- www.theguardian.com/media/2018/aug/01/ journalist Behrouz Boochani, stranded on Manus ning author to be freed from Manus”, MEAA April 2 fairfax-nine-takeover-watchdog-promises-long-re- Island”, PEN International, December 7 2017 https:// 2019 https://www.meaa.org/news/writers-and-jour- view-focusing-on-media-diversity?CMP=Share_iO- pen-international.org/news/on-human-rights-day- nalists-call-for-award-winning-author-to-be-freed- SApp_Other take-action-for-journalist-behrouz-boochani-strand- from-manus/ ed-on-manus-island 323 “How the Fairfax takeover will further 359 https://www.meaa.org/campaigns/free-beh- concentrate Australia’s media”, Nick Evershed, The 341 “Asylum seekers and the Refugee Conven- rouz/ Guardian August 2 2018 https://www.theguardian. tion”, Harriet Spinks, Social Policy and Ian McClus- com/news/datablog/2018/aug/03/the-fairfax-take- key, Law and Bills Digest, Parliamentary Library, 360 “Photos of ‘unparliamentary behaviour’ over-and-how-it-will-worsen-australias-media-in- Parliament of Australia https://www.aph.gov.au/ banned in Tasmania under new ‘heavy-handed’ me- dustry-squeeze?CMP=soc_568 About_Parliament/Parliamentary_Departments/ dia rules”, Rhiana Whitson, October 18 2018 https:// Parliamentary_Library/pubs/BriefingBook44p/Asy- www.abc.net.au/news/2018-10-18/media-crack- 324 “ACCC review into Nine Fairfax merger will be lumSeekers down-in-tasmanian-parliament-criticised/10378124 ‘thorough’: Rod Sims”, Vivienne Kelly, Mumbrella, August 4 2018 https://mumbrella.com.au/accc-re- 342 No friend but the Mountains: Writing from Ma- 361 ibid view-into-nine-fairfax-merger-will-be-thorough-rod- nus Prison, Behrouz Boochani, Behrouz, Translated sims-533701 by Omid Tofighian, Picador Australia, October 2018 362 ibid ISBN 9781760555382 https://www.panmacmillan. 325 Fair Go Fairfax, Latest News, MEAA https:// com.au/search/?keyword=Behrouz+Boochani 363 “Tasmanian Parliament’s new media rules www.meaa.org/campaigns/fair-go-fairfax/ are an “egregious attack”, MEAA, October 19 2018 343 “Free Behrouz”, MEAA, March 2019 https:// https://www.meaa.org/news/tasmanian-parlia- 326 ibid www.meaa.org/campaigns/free-behrouz/ ments-new-media-rules-are-an-egregious-attack/

327 MEAA submission to the ACCC formal review 344 ibid of Nine takeover of Fairfax Media, MEAA September 12 2018 https://www.meaa.org/download/meaa- 345 “Caselist” Pen International Writers in Prison submission-to-the-accc-formal-review-of-nine-take- Committee, January-December 2014 https://pen-in- over-of-fairfax-media/ ternational.org/app/uploads/archive/2015/05/Janu-

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364 “’Lingering’ in Tasmanian Parliament back on 3 2019 https://docs.wixstatic.com/ugd/c1a6a6_ com.au/news/vic/balibo-five-living-memorial-un- again, after media crackdown backflip”, Rhian- 340c78a5b79d46c8b38861724fbf2a30.pdf veiled-to-honour-murdered-australian-journal- na Whitson and Ellen Coulter, ABC, October 30 ists-c-40461 2018 https://www.abc.net.au/news/2018-10-30/ 380 “Newsroom safety self-assessment resource backdown-on-media-rules-in-tasmania-parlia- launched”, IFeX, April 3 2019 https://ifex.org/interna- 398 ibid ment/10448128 tional/2019/04/03/safety-self-assessment/ 399 “Kings Cross activist Juanita Nielsen’s 365 ibid 381 ibid 1975 disappearance is Australia’s biggest murder mystery”, Neil Keene, The Daily Telegraph, July 1 366 “Media companies on notice over traumatised 382 “International Day to End Impunity for Crimes 2015 https://www.dailytelegraph.com.au/news/ journalists after landmark court decision”, Matthew against Journalists 2017”, Unesco, November 2 2017, nsw/king-cross-activist-juanita-nielsens-1975-dis- Ricketson and Alexandra Wake, The Conversation, https://en.unesco.org/endimpunity-2017/about-in- appearance-is-australias-biggest-murder-mystery/ March 6 2019 https://theconversation.com/me- ternational-day-end-impunity news-story/fa444e9567ce62928582adfc15b60315 dia-companies-on-notice-over-traumatised-journal- ists-after-landmark-court-decision-112766 383 ibid 400 ibid

367 “Reporter awarded $180k for stress, anxiety”, 384 “Truth to tell”, Jo Chandler, The Age, July 24 401 Agence-France-Presse, “Norway banishes AAP, nine.com.au, February 22 2019 https://ww- 2009 https://www.smh.com.au/national/truth-to- Islamist preacher to remote village after prison w.9news.com.au/2019/02/22/15/43/reporter-award- tell-20090723-duvj.html release” The Guardian, February 3 2015 http://www. ed-180k-for-stress-anxiety theguardian.com/world/2015/feb/02/norway-ban- 385 “The International Law Aspects of the Case of ishes-islamist-preacher-to-remote-village-after-pris- 368 “Trauma of news journalism in focus after The the Balibo Five” [2010] MelbJlIntLaw 3; (2010) 11(1) on-release Age found responsible for reporter’s PTSD”, The Law Melbourne Journal of International Law 68, Robert Report, ABC, March 22 2019 https://www.abc.net.au/ Dubler, Melbourne Journal of International Law, Uni- 402 “Norwegian Islamist Mullah Krekar arrested news/2019-03-22/ex-age-journalist-awarded-dam- versity of Melbourne, 2010 http://classic.austlii.edu. for Charlie Hebdo comments”, March 3 2015, http:// ages-for-ptsd-world-first/10896382 au/au/journals/MelbJIL/2010/3.html#fnB4 www.news.com.au/world/norwegian-islamist-mul- lah-krekar-arrested-for-charlie-hebdo-comments/ 369 “Media companies on notice over traumatised 386 ibid story-fndir2ev-1227245521379 journalists after landmark court decision”, Matthew Ricketson and Alexandra Wake, The Conversation, 387 “Yosfiah”, “Balibo - The Film vs Reality”, 403 “The government will not meet any of Krekar’s March 6 2019 https://theconversation.com/me- reaearch by Dr , School of requirements”, Afternposten, March 13 2019 https:// dia-companies-on-notice-over-traumatised-journal- Humanities and Social Sciences, University of NSW www.aftenposten.no/norge/i/ngpVja/Regjerin- ists-after-landmark-court-decision-112766 Canberra at the Academy, gen-vil-ikke-innfri-noen-av-Krekars-krav https://www.unsw.adfa.edu.au/school-of-hu- 370 ibid manities-and-social-sciences/east-timor/english/ 404 http://www.abc.net.au/corp/memorial/tony- film-vs-reality/yosfiah joyce.htm 371 ibid 388 Philip Dorling, “AFP fails to question Jakarta 405 “Tony Joyce: truth the casualty in the 372 “’Psychologically scarred’: Age crime in Balibo Five investigation”, The Sydney Morning unsolved murder of Australian journalist”, Alan reporter wins $180,000 for workplace trau- Herald, October 13 2014 http://www.smh.com.au/ Ramsay, The Sydney Morning Herald, July 31 and ma”, Emily Watkins, Crikey, February 27 2019 national/afp-fails-to-question-jakarta-in-balibo-five- August 1 2015 https://www.smh.com.au/opinion/ https://www.crikey.com.au/2019/02/27/ investigation-20141013-115ayu.html tony-joyce-truth-the-casualty-in-the-unsolved-mur- psychologically-scarred-the-age-crime-report- der-of-australian-journalist-20150730-gio4sk.html er-wins-180000-for-reporting-trauma/ 389 Statement by Mr. Don Foster (Bath) (LD) to the House of Commons, Hansard, February 27 2008 406 Massacre in the Philippines: International Sol- 373 “Media companies on notice over traumatised https://publications.parliament.uk/pa/cm200708/ idarity Mission Rapid Assessment, December 2009, journalists after landmark court decision”, Matthew cmhansrd/cm080227/halltext/80227h0011.htm International Federation of Journalists Asia-Pacific, Ricketson and Alexandra Wake, The Conversation, January 2010 https://www.ifj.org/fileadmin/user_ March 6 2019 https://theconversation.com/me- 390 ibid upload/2009_Philippines.pdf dia-companies-on-notice-over-traumatised-journal- ists-after-landmark-court-decision-112766 391 ibid 407 Ampatuan Massacre Five Years On, Inter- national Federation of Journalist, January 2015 374 “Trauma of news journalism in focus after The 392 Helen Davidson, “Balibo Five: police drop https://www.meaa.org/download/ampatuan-mas- Age found responsible for reporter’s PTSD”, The Law investigation into killings of Australian journalists”, sacre-five-years-on/ Report, ABC, March 22 2019 https://www.abc.net.au/ Guardian Australia, October 21 2014, http://www. news/2019-03-22/ex-age-journalist-awarded-dam- theguardian.com/australia-news/2014/oct/21/bali- 408 “7 years on - Ampatuan Massacre victims ages-for-ptsd-world-first/10896382 bo-five-police-drop-investigation-into-killings-aus- denied justice”, MEAA, November 23 2016 https:// tralian-journalists www.meaa.org/news/7-years-on-ampatuan-mas- 375 http://dartcenter.org/ sacre-victims-denied-justice/ and “UN convention 393 “AFP fails Balibo Five, impunity wins”, October to protect journalists”, MEAA, November 22 2017 376 Adequacy of existing offences in the Com- 22 2015 http://www.alliance.org.au/afp-fails-the- https://www.meaa.org/news/un-convention-to-pro- monwealth Criminal Code and of state and territory balibo-five-impunity-wins tect-journalists/ criminal laws to capture cyberbullying, Senate Legal and Constitutional Affairs References Committee, 394 Sara Everingham, “Balibo Five: Relative of 409 Media Safety and Solidarity Fund, MEAA Parliament of Australia, September 7 2017 https:// one of the victims calls for AFP to reopen war crimes https://www.meaa.org/meaa-media/mssf/ www.aph.gov.au/Parliamentary_Business/Com- investigation”, October 16 2015, ABC online http:// mittees/Senate/Legal_and_Constitutional_Affairs/ www.abc.net.au/news/2015-10-16/balibo-five-rela- 410 Data supplied by the National Union of Cyberbullying/Report tives-call-for-investigation-to-be-reopened/6859058 Journalists of the Philippines and the International Federation of Journalists Asia Pacific. 377 MEAA Media submission to the Senate Legal 395 “’Reformasi total’: Lessons from Indonesia on and Constitutional Affairs References Committee’s media reform”, Janet Steel, The Jakarta Post, July 411 Ampatuan Massacre Five Years On: Inter- inquiry into the adequacy of existing offences in the 23 2018 https://www.thejakartapost.com/aca- national Solidarity Mission, November 2014, Commonwealth Criminal Code and of state and ter- demia/2018/07/23/reformasi-total-lessons-from-in- Philippines, International Federation of Journalists, ritory criminal laws to capture cyberbullying, MEAA, donesia-on-media-reform.html January 2015, https://www.meaa.org/download/ January 3 2018 https://www.meaa.org/mediaroom/ ampatuan-massacre-five-years-on/ meaa-media-submission-on-cyberbullying/ 396 “Presidential candidates vie for support of retired military generals”, Nurul Fitri Ramadhani, 412 “9 years later, 70 accused in Ampatuan mas- 378 Criminalising Journalism: the MEAA Report The Jakarta Post, March 8 2019 https://www.theja- sacre still at large”, Nicole-Anne C. Lagrinas, GMA into the State of Press Freedom in Australia in 2018, kartapost.com/news/2019/03/08/presidential-can- News November 22 2018 https://www.gmanetwork. MEAA, May 3 2018 https://www.meaa.org/download/ didates-vie-for-support-of-retired-military-generals. com/news/news/nation/675705/9-years-later-70-ac- criminalising-journalism-the-meaa-report-into-the- html cused-in-ampatuan-massacre-still-at-large/story/ state-of-press-freedom-in-australia-in-2018/ 397 “Balibo Five: Living memorial unveiled to 413 Ampatuan Massacre Five Years On: Inter- 379 News Organisations Safety Self-Assessment, honour murdered Australian journalists”, Nick national Solidarity Mission, November 2014, International Federation of Journalists et al, April McCallum, , April 9 2019 https://7news. Philippines, International Federation of Journalists,

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January 2015, https://www.meaa.org/download/ 2019 https://www.nytimes.com/2019/03/15/opin- 447 https://www.opengovpartnership.org/ ampatuan-massacre-five-years-on/ ion/new-zealand-shooting.html 448 “Save the OIA”, Stuff https://www.stuff.co.nz/ 414 “DoJ to wrap up 2009 Ampatuan massacre 433 “Christchurch mosque shootings: How social national/save-the-oia case”, Arjay L. Balinbin, BusinessWorld March 10 media’s business model helped the massacre go 2019 https://www.bworldonline.com/doj-to-wrap- viral”, The Washington Post via The New Zealand 450 "MEAA urges Nauru to issue ABC with visa", up-2009-ampatuan-massacre-case/ Herald, March 20 2019 https://www.nzherald. MEAA, July 3 2018 https://www.meaa.org/mediar- co.nz/business/news/article.cfm?c_id=3&objec- oom/meaa-urges-nauru-to-issue-abc-with-visa/ 415 “9 years later, 70 accused in Ampatuan mas- tid=12214427 sacre still at large”, Nicole-Anne C. Lagrinas, GMA 451 "Let’s not keep muzzling our watchdogs", Pe- News November 22 2018 https://www.gmanetwork. 434 Office of Film & Literature Classification ter Greste, The Australian, February 5 2019 https:// com/news/news/nation/675705/9-years-later-70-ac- https://www.classificationoffice.govt.nz/ www.theaustralian.com.au/opinion/lets-not-keep- cused-in-ampatuan-massacre-still-at-large/story/ muzzling-our-watchdogs/news-story/6c4173d6c6e- 435 “Christchurch attacks classification informa- 2602a6f41fed7bf2496fc?login=1 416 “Light at the end of the tunnel”, editorial, tion”, Office of Film & Literature Classification, March Cebu Daily News Inquirer, November 22 2018 23 2019 https://www.classificationoffice.govt.nz/ https://cebudailynews.inquirer.net/204788/light-at- news/latest-news/christchurch-attacks-press-releas- the-end-of-the-tunnel-2#ixzz5ifMI7CnT es/

417 Data supplied by the National Union of 436 “ISPs keep Chch web blocks after Govt inter- Journalists of the Philippines and the International vention”, Sam Sachdeva, Newsroom, March 27 2019 Federation of Journalists Asia Pacific. https://www.newsroom.co.nz/2019/03/27/507977/ isp-keeps-chch-web-blocks-after-govt-intervention 418 ibid 437 “Free speech v hate speech: Whose rights do 419 “World Report 2019 - Philippines”, Human we stand up for?”, Sam Hurley, The New Zealand Rights Watch, February 2 2019 https://www.hrw. Herald, June 3 2018 https://www.nzherald.co.nz/nz/ org/world-report/2019/country-chapters/philip- news/article.cfm?c_id=1&objectid=12038464 pines#1ff4dc 438 “Christchurch mosque shootings: Does New 420 “Duterte confesses: ‘My only sin is the extraju- Zealand need hate speech laws after terror attacks?”, dicial killings’”, Hannah Ellis-Petersen, The Guardian Sam Hurley, The New Zealand Herald, March 25 2019 September 28 2018 https://www.theguardian.com/ https://www.nzherald.co.nz/crime/news/article. world/2018/sep/28/duterte-confesses-my-on- cfm?c_id=30&objectid=12216004 ly-sin-is-the-extrajudicial-killings 439 “Australian media unite to fight laws to jail 421 “Trump chuckled as Duterte called journalists journalists”, Colin Peacock, Media Watch, Radio ‘spies.’ That’s no joke in the Philippines.”, Samantha New Zealand, April 29 2018 https://www.radionz. Schmidt, The Washington Post, November 14 co.nz/national/programmes/mediawatch/au- 2017 https://www.washingtonpost.com/news/ dio/2018642358/australian-media-unite-to-fight- morning-mix/wp/2017/11/14/trump-chuckled-as- laws-to-jail-journalists duterte-called-journalists-spies-thats-no-laughing- matter-in-the-philippines/?noredirect=on&utm_ter- 440 “Prime Minister Jacinda Ardern announces m=.61cb174156b3 details of inquiry into security services”, Radio New Zealand, March 25 2019 https://www.radionz.co.nz/ 422 Correspondence from MEAA to Foreign news/political/385528/prime-minister-jacinda-ar- Minister Marise Payne and Shadow Foreign Minister dern-announces-details-of-inquiry-into-securi- Penny Wong, October 29 2018 ty-services?utm_source=The+Bulletin&utm_cam- paign=682ac573bc-EMAIL_CAMPAIGN_2018_03_01_ 423 ibid COPY_01&utm_medium=email&utm_ter- m=0_552336e15a-682ac573bc-533767281 424 International Convention on the Safety and Independence of Journalists and other Media 441 “Reporter Andrea Vance gets Parliamentary Professionals, International Federation of Journal- Service apology for privacy breach”, Vernon Small, ists, https://www.ifj.org/fileadmin/user_upload/ Stuff, December 24 2014 https://www.stuff.co.nz/ Draft_Convention_Journalists_E.pdf national/politics/64441839/null

425 In the Shadow of Violence - Journalists and 442 “Edward Snowden alleges ‘cover up’ over Media Staff killed in 2018, International Federation mass surveillance in New Zealand”, Newshub, No- of Journalists, February 7 2019 https://www.ifj.org/ vember 29 2017 https://www.newshub.co.nz/home/ fileadmin/user_upload/IFJ_2018_Killed_Report_FI- new-zealand/2017/11/edward-snowden-alleges- NAL_pages.pdf cover-up-over-mass-surveillance-in-new-zealand. html 426 “Threats to journalists on the rise”, MEAA, June 29 2018 https://www.meaa.org/news/threats- 443 “$2 million budget for NZDF Afghanistan SAS to-journalists-on-the-rise/ raid Special Inquiry Office”, Stuff, September 3 2018 https://www.stuff.co.nz/national/106778657/2-mil- 427 In the Shadow of Violence - Journalists and lion-budget-for-nzdf-afghanistan-sas-raid-special-in- Media Staff killed in 2018, International Federation quiry-office of Journalists, February 7 2019 https://www.ifj.org/ fileadmin/user_upload/IFJ_2018_Killed_Report_FI- 444 Administration of Justice (Reform of NAL_pages.pdf Contempt of Court) Bill, New Zealand Legislation, Parliamentary Counsel Office http://www.legisla- 428 ibid tion.govt.nz/bill/member/2018/0039/latest/whole. html#LMS24831 429 Correspondence to MEAA from Senator the Hon Simon Birmingham - Minister for Trade, Tourism 445 Andrea Vance, Twitter, March 13 and Investment, October 25 2018 2019 https://twitter.com/avancenz/sta- tus/1105656440792862720?s=21 430 ibid 446 “Latest OIA statistics released”, State Services 431 ibid Commission via Scoop, March 13 2019 http://www. scoop.co.nz/stories/PO1903/S00125/latest-oia-sta- 432 “The New Zealand Massacre Was Made to Go tistics-released.htm Viral”, Charlie Warzel, The New York Times, March 15

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