CRIMINALISING JOURNALISM THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 2 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 3

CONTENTS FOREWORD BY PAUL MURPHY, CHIEF EXECUTIVE, MEAA 2018 MEAA FOREWORD THE INDUSTRY AUSTRALIAN Paul Murphy 3 Public interest journalism 35 PRESS FREEDOM REPORT Digital platforms 38 In their own words 5 Redundancies 40 Editor: Mike Dobbie ATTITUDES ABOUT Gender 43 THANKS TO: PRESS FREEDOM Peter Bartlett Andrew Fowler MEAA’s press freedom survey GOVERNMENT Peter Greste Mark Phillips 8 Alex Hearne The “super” ministry 45 Dean Levitan Public broadcasting 46 Johan Lindberg Sharon Murdoch THE LAW Media ownership 50 Colin Peacock The year in Australian media law Mark Phillips Asylum seekers 55 Adelaide Rosenthal Peter Bartlett, Dean Levitan and Adelaide Rosenthal 10 MEAA thanks all the Suppression orders 13 SAFETY here’s almost universal The draft law that heralded this Malcolm Turnbull, himself a former contributors to this report. acceptance of the maxim appalling new assault on press freedom journalist. Defamation 17 Cyberbullying 56 “Journalism is not a crime”. in Australia, the National Security One exception is Australia’s Legislation Amendment (Espionage and The pushback against the Bills has Design: Detention, threats and T Louise Summerton parliament – it begs to differ. Foreign Interference) Bill 2017 and the culminated in journalists and media harassment 62 Foreign Influence Transparency Scheme groups insisting on a media exemption LX9 Design NATIONAL SECURITY Legislating for Australia’s national Bill 2017, was rightly met with a storm – a move supported by the chair of Impunity 64 security has drifted a long way from the of protest, not least from MEAA but Transparency International Australia, Cover image: The creeping criminalisation fight against terrorism. Increasingly, the also from media outlets, the Law former NSW Supreme Court judge Mark Evans of of journalism Parliament passes laws that are about Council of Australia and human rights Anthony Whealy QC. BlueskyImage/ Professor Peter Greste 19 THE ASIA-PACIFIC suppressing the public’s right to know organisations. Even the Commonwealth Shutterstock.com and criminalising anyone who reveals Ombudsman and the Inspector-General Sadly, the head of ASIO Duncan Lewis Welcome to the machine Press freedom in New Zealand information the Government would of Intelligence and Security were rejected the idea, saying exemptions prefer was locked up. quick to identify and condemn adverse would leave the door wide open for Approved by Paul Murphy Andrew Fowler 22 Colin Peacock 67 - chief executive, consequences of the legislation. foreign spies to exploit, adding that Media, Entertainment & National security powers 24 Press freedom in the Asia-Pacific How else can you explain how a draft law it may also increase “the threat to Arts Alliance Alex Hearne 70 could be introduced into the Parliament When four United Nations’ special journalists” – a startling claim from that would allow for journalists to be rapporteurs (privacy; human rights the spymaster, given that the Bill seeks 245 Chalmers Street, Journalist Information locked up for 20 years for reporting defenders; freedom of opinion and to allow the Australian Government to Redfern, NSW 2016 Warrants 24 Journalist safety 74 information in the public interest? In expression; and protecting human be the one that imprisons journalists, Encryption 25 The Media Safety and the name of keeping the people safe, rights while countering terrorism) muzzle their journalism and hound their Solidarity Fund 75 the Government now wants to keep made submissions protesting aspects sources. Espionage and Foreign information hidden from view, and of the Bills it was clear the Government Influence Bills 26 punish the whistleblowers who disclose had stepped far beyond Australia’s It is also concerning that the new the information and the journalists who obligations under international law and Attorney-General Christian Porter New bill would make Australia 30 FUTURE work with them. human rights standards. insisted that the government never worst in the free world for intended to jail journalists for simply The way forward 76 In an even more egregious example of In the face of such a spectacular own “receiving documents” – even though criminalising journalism legislative overreach, under the guise goal, it is reasonable to ask how the that is precisely what the Bill said. Porter Johan Lindberg of combating “espionage” and “foreign Government could draft laws that could added prosecutions of journalists would References 79 interference”, journalists, editorial attract such opprobrium. After all, the not proceed without his sign-off. But Whistleblower protection 32 production staff, media outlets’ legal Bills were overseen by the then Attorney- we’ve heard such an offer before - his Shield laws 33 advisers and even the office receptionist General George Brandis, approved by the predecessor George Brandis said he could be locked up for merely handling Cabinet, and introduced to the House of wouldn’t lock up journalists convicted that information. Representatives by the Prime Minister under the Brandis-designed section 35P CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 4 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 5

of the ASIO Act. And yet, 35P and its public, highlighted a division between have become more desperate and penalty of up to 10 years in jail, remains journalists and their audience about unhinged, resulting in lengthy inquiries on the statute books. press freedom problems. that waste public money that could be spent on adequately funding the It must be remembered that these latest From just shy of 1300 completed increasingly crucial role being played by “national security amendments” that surveys, almost 21 per cent came from public broadcasters in providing vital criminalise legitimate public interest working journalists with the balance public interest journalism. journalism are simply the most recent from members of the public or non- of an emerging pattern of government working retired/unemployed journalists Crucial because, as we have also seen, attacks on press freedom and freedom or journalism students. While 72 per the heavy round of redundancies have of expression, attacks that were initially cent of the public rated the health of continued at the leading media houses triggered by 9/11 but which dramatically press freedom in Australia as poor or – not least at Fairfax which triggered a escalated with the WikiLeaks and very poor, only 60 per cent of journalists snap seven-day strike by its journalists Edward Snowden revelations about thought so – even though 90 per cent when it slashed 125 jobs – that’s one the levels of government surveillance thought press freedom had worsened in four editorial staff – from its metro and scrutiny of their citizens’ over the past decade. newsroom on UNESCO World Press telecommunications data. Freedom Day in 2017. Indeed, national security laws ranked With governments around the world first as the most important press But looking at the long-term, there having been embarrassed by these freedom issue for journalists (21 per is still plenty more to be done. A disclosures about what they secretly cent) and non-journalists (20 per Senate Select Committee inquired get up to in the name of their citizens, cent); followed by funding for public into the future of public interest Senator George Brandis is there has come a response to keep these broadcasting, government secrecy, journalism and adopted most of MEAA’s congratulated by Communications activities hidden and to tighten control freedom of information and defamation. recommendations, including the need Minister Mitch Fifield after delivering his valedictory speech. IMAGE COURTESY over government information. Simply It may be a sign that journalists for reform of Australia’s uniform ALEX ELLINGHAUSEN, FAIRFAX PHOTOS by declaring something is “secret” and their employers have been too national defamation law regime. IN THEIR OWN WORDS government can hide from legitimate complacent about the steady drip of scrutiny, intimidate whistleblowers, assaults on press freedom, distracted The digital platforms, whose power punish disclosure and muzzle legitimate by the other issues besetting the media has done much to cripple media “THERE CAN BE NO PRESS FREEDOM IF JOURNALISTS EXIST IN CONDITIONS public interest journalism. industry. outlets while riding the coat-tails of OF CORRUPTION, POVERTY OR FEAR.” - INTERNATIONAL FEDERATION OF JOURNALISTS latter’s editorial content, needs to be With legislation being drafted offering Thankfully though, in the past 12 addressed. So too the other MEAA 20 years jail for journalists, Australia months there has been some good news recommendations for government Prime Minister Malcolm Turnbull Commonwealth officers that leak classified could be captured. Even reporting on has consciously wandered into the on the press freedom front. support for the media industry. There introducing the Espionage Bill information, but also criminalises all domestic or international politics could arena populated by serial press freedom is much work to be done to ensure the “I give personal thanks to my Attorney- the steps that go into reporting such contravene the provisions, depending on abusers. Countries like Egypt, Turkey, The Northern Territory Parliament media can meet the challenges ahead General, Senator George Brandis, who information to the public.”4 how the courts interpreted them… What China, Myanmar and Cambodia that passed shield laws recognising journalist but, at last, government being forced to has applied his Queen’s Counsel’s mind is even more concerning is that this adds lock-up journalists who disclose what privilege, with the new South Australian listen. methodically and creatively to tailor our Transparency International Australia yet another layer on existing legislation their governments are up to. Government to follow. That will leave 1 just Queensland as the only jurisdiction Encouragingly, the combined response legislative framework.” chairman Anthony Whealy – “The that can protect the government from Australia has done so, in part, because still demanding journalists disobey their by media organisations including MEAA law is sufficiently wide to get you and if embarrassment, rather than from genuine media organisations and the community ethical obligation to never reveal the to the government’s unjust national MEAA – “The Bill would make it a crime they’re not intending to get you, why not threats.”6 have let it happen. Governments have identity of a confidential source thus security laws has demonstrated that for anyone to ‘receive’ and ‘handle’ certain exempt you? Journalists should not have used the “war on terror” as an excuse facing the threat of a jail term or fine or vital press freedom principles are national security information. A journalist this sort of a law hanging over their head, United Nations rapporteurs’ joint to fashion a legislative muzzle on the both for contempt if they fail to do so. important and must be championed. in possession of a document classified ‘top because when Christian Porter is not communique – “Such extensive criminal fourth estate in an effort to fend off There has also been a recognition that secret’ could face 20 years in jail – even if the Attorney-General, and it is someone prohibitions, coupled with the threat of legitimate scrutiny. Media organisations the courts, particularly those in Victoria, Slowly, political leaders may be realising they never broadcast or publish a story.”2 else, he or she might take a very different lengthy custodial sentences and the lack have been weakened by digital need to address the use of suppression that the fourth estate must be allowed to view… The bigger point is why should a of meaningful defences, are likely to have disruption and have, at times, put up and non-publication orders if the continue to scrutinise the powerful if we Law Council of Australia – “The basic journalist have to go through a criminal a disproportionate chilling effect on the an ineffective opposition to laws that judicial system is to operate openly and are to continue as a healthy, functioning difficulty with the Bill is that many of the trial? There should be an exemption for work of journalists, whistleblowers, and curtail press freedom. transparently. democracy. To do otherwise would mean Australia drifts into the ranks of a offence provisions are broadly drafted to journalists acting in the public interest, not activists seeking to hold the government 5 7 Indeed this year, in the first press Sadly, the highly politicised attacks rogues’ gallery of press freedom abusers. capture a range of benign conduct that a defence.” accountable to the public.” freedom survey MEAA has conducted, unleashed on the ABC have continued. may not necessarily amount to harm or it appears that journalists are also more The ABC has been fiscally hurt to the prejudice to Australia’s interests.”3 Australian Lawyers Alliance blog – Attorney-General Christian Porter – relaxed about assaults on press freedom extent that it is now struggling to meet Paul Murphy “Whistleblowers revealing dangerous and “The Prime Minister, in his discussions than the community at large. The its charter obligations, particularly in chief executive Sydney Criminal Lawyers’ blog – harmful conditions in offshore detention with me, has made clear the absolute need survey, which was completed by working rural and regional Australia. But in the MEAA “The Bill creates a series of draconian could be caught by this new law. Reporters for this legislation to protect Australia, journalists as well as members of the past 12 months, the political attacks laws that aim not only to penalise revealing misconduct or corruption but also his concerns that the drafting of CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 6 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 7

this legislation must clearly match the government’s intent not to unnecessarily restrict freedom of communication. There is not, nor has there ever been, any plan… by the government to see journalists going to jail simply for receiving documents and that would not occur under this bill as currently drafted.”8

Porter – “There has been no intention to unnecessarily restrict appropriate freedoms of the media. Where drafting improvements are identified that strike a better balance, the Government will promote those changes.”9 with other nations… is the sort of thing From left: US President Donald Trump – that you might expect a journalist to be Roger Franklin, online editor, Quadrant Communications Minister Mitch Fifield One Nation Senator Pauline Hanson with Senator Joint Media Organisations’ second 27 reporting on, in the context of ordinary – “Life isn’t fair and death less so. Had there – “We’re simply reinforcing, through “#FraudNewsCNN #FNN” Brian Burtson left and former Senator Malcolm Roberts supplementary submission on the democratic discussions in this country. We been a shred of justice that blast would have legislation, that which is already in the right. IMAGE COURTESY ANDREW MEARES, FAIRFAX PHOTOS Espionage Bill – “Notwithstanding the Peter Dutton addresses the media. IMAGE COURTESY ALEX don’t want the net to be cast so wide that detonated in an Ultimo TV studio. Unlike ABC’s own editorial policies. It will operate Brandon Griesemer made 22 amendments, it remains the case that ELLINGHAUSEN, FAIRFAX PHOTOS legitimate democratic discussion is going those young girls in Manchester, their lives exactly as it does now…”21 threatening phone calls to CNN’s journalists and their support staff continue Maltese investigative journalist Daphne Caruana to suffer. We need to think carefully about snuffed out before they could begin, none Atlanta offices – “Fake news… I’m coming Galizia was killed by a car bomb to risk jail time for simply doing their jobs. what’s being taken away.”13 of the panel’s likely casualties would have Fifield – “It would reflect better on the to gun you all down… You are going down. This is why we believe that the way in represented the slightest reduction in ABC, secure in its more than $1bn of I have a gun and I am coming to Georgia which to deal with this appropriately is to the world keep fighting and developing Senator Brian Burston – “I’ve contacted humanity’s intelligence, decency, empathy annual funding, if it showed a greater right now to go to the CNN headquarters to provide an exemption for public interest 28 new ideas and initiatives in order to (Finance Minister) Mathias Cormann and or honesty.”16 understanding of the challenges faced by fucking gun every single last one of you.” reporting.”10 put an end to the safety crisis in media, said One Nation wants the ABC funding its commercial counterparts who earn their building stronger trade unions to protect reduced by $600 million over the forward Home Affairs Minister Peter Dutton revenue rather than receive it from the Brian Mitchell MP to an ABC reporter – Joint Media Organisations – “The right 29 journalists and media workers. There is estimates. If they’re not forthcoming in – “It’s a cultural problem at the ABC and Treasury.”22 “Go and do your research, maggot!” to free speech, a free media and access to much that has been done but today we reducing funding to the ABC as part of their the board needs to deal with it… I actually information are fundamental to Australia’s don’t forget the continuing challenges we budget repair we’ll have to seriously consider think there is a fundamental problem MEAA – “This Bill is a calculated insult ACT Chief Minister Andrew Barr – modern democratic society, a society that must face together within the profession what budget repair options (we support) that with the ABC, particularly around Q&A… directed at the ABC and its employees. The “I hate journalists. I’m over dealing prides itself on openness, responsibility in terms of the safety and labour rights of the Liberal Party puts forward. It’s about I don’t watch it. It is a waste of taxpayers’ proposed addition to the ABC Act borders with the mainstream media as a form and accountability. However, unlike some our colleagues, notably with the IFJ fight time we apply a little bit of pressure on the money…”17 on comical, but is unfortunately rooted in of communication with the people of comparable modern democracies, Australia 30 against the scandalous impunity of most government to do something about the left- a transgressive campaign to undermine Canberra.” has no laws enshrining these rights… journalists’ assassins.”33 wing, Marxist ABC.”14 Senator Brian Burston – “It’s about time the performance and reputation of the Therefore we do not resile from our long- we took a stand against the ABC because if nation’s most esteemed (and scrutinised) Committee to Protect Journalists – “In held recommendation for exemptions for UNESCO – “Every year, May 3 is a date (Then) Senator Malcolm Roberts – it’s us and they destroy us, what is it next, broadcaster. MEAA believes this its annual prison census, CPJ found 262 public interest reporting in response to which celebrates the fundamental “Their ABC put our diggers’ lives at risk the government? They’re showing total misleading and dangerous Bill should be journalists behind bars around the world in legislation that criminalises journalists for principles of press freedom, to evaluate so as to execute a political hit on Senator bias against One Nation.”18 withdrawn without further debate.”23 relation to their work – a new record. The going about their jobs. The lack of such press freedom around the world, to Hanson. The ABC have declared jihad prison census accounts only for journalists a protection – and the ever-increasing defend the media from attacks on their on Aussie diggers. They have a fatwa on Senator Pauline Hanson – “Some of the Craig Kelly MP – “I don’t think the in government custody and does not offences that criminalise journalists for independence and to pay tribute to Pauline Hanson. Our diggers who were to television and radio personalities [at the national broadcaster is acting in the include those who have disappeared or doing their jobs – stops the light being journalists who have lost their lives in the protect Pauline are the ones who would ABC] wouldn’t cut it in the real world of national interest.”24 are held captive by non-state groups. shone on issues that the Australian public These cases are classified as ‘missing’ or exercise of their profession. It serves as an 11 have shielded the Senators when the media and would likely end up throwing has a right to know.” 31 occasion to inform citizens of violations of bullets and bombs started to fly. It was pots in Nimbin without the ABC providing The final blog post of Maltese ‘abducted’.” press freedom… May 3 acts as a reminder their lives the ABC recklessly put on the a safe haven for their pathetic talent.”19 investigative journalist Daphne ASIO director-general Duncan Lewis – to governments of the need to respect their line. The ABC are warped and dangerous. Caruana Galizia, 30 minutes before International Federation of Journalists “Broad exemptions for journalists would, commitment to press freedom… Just as Terrible. Horrible. Sad. The ABC’s actions The Australian – “The change to the ABC she was killed by a car bomb – “There (IFJ) – “82 journalists killed in 2017. In the in my view, effectively leave a door wide importantly, World Press Freedom Day is a in revealing the Anzac Day visit to diggers Act – yet to be brought to parliament – is are crooks everywhere you look now. The overwhelming majority of these cases, the open for foreign spies to exploit, and may day of support for media which are targets shows their willingness to collude with part of a deal the government did with One situation is desperate.” 25 killers have not been identified and justice have the unintended consequence of for the restraint, or abolition, of press ISIS and other terrorists in identifying Nation in exchange for passing its overhaul for the victims and their families remains increasing the intelligence threat that is 32 freedom. It is also a day of remembrance Australian targets, including troops. The of media laws… The One Nation senators Slovak police chief Tibor Gaspar on the as elusive as ever.” faced by our journalists.”12 for those journalists who lost their lives in ABC has for a long time been harbingers have previously offered up examples of murder of journalist Jan Kuciak and his the pursuit of a story.”34 of terror apologists. This proves their Jihad topics where they think ABC coverage partner Martina Kusnirova – “It seems IFJ president Philippe Leruth – “The IFJ Law Council of Australia president sympathy. Just like an ISIS attack, the hasn’t been appropriately balanced, that the most likely version is a motive pays tribute to all our brave colleagues who Morry Bailes – “The radical altering of the cowards make their hit and then scuttle including climate change and giving equal connected to the investigative work of the last year paid the ultimate price to unveil definition of what is national security to away into the sand. Like snakes.”15 time to the views of anti-vaxxers.”20 journalist.”26 the truth. The IFJ and its affiliates all over include political and economic relations CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 8 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 9

TWO-THIRDS SAID THEY ATTITUDES ABOUT PRESS FREEDOM WERE NOT CONFIDENT THEIR SOURCES COULD BE PROTECTED BY MARK PHILLIPS

he state of press freedom in as a journalist or other form of media Both journalists and non-journalists Australia has deteriorated over professional. Another 141 respondents were identified national security laws as In the past 12 months, have any of these the past decade, with the impact either retired or unemployed journalists, or the most important press freedom Do you believe Australia’s defamation In the past 12 months, did information from a confidential source lead you to [national security] laws affected your of national security laws on studying for a career in journalism. issue, with roughly one in five of both laws make reporting more difficult? T publish/broadcast a news story? ability to produce your journalism? journalism the biggest concern, according respondent groups ranking it the top Of those working in the media, 75.6 per to a survey of more than 1200 people issue. cent had careers of at least 10 years. conducted by MEAA. NO Second for both groups was funding 28.1 YES YES But few journalists say their employer is of public broadcasting, followed by 36.7% 16.3% keeping them informed about changes to 100 92.7 government secrecy. YES NO 86.9 88.5 71.9% NO national security laws which may have 63.3% A separate set of questions only for 83.7% an impact on their work, and more than 80 journalists sought to explore their half have no confidence that they could personal experiences of press freedom protect sources from being identified 60 issues in recent years. through their metadata. Do you believe legislation in the public Have you received a defamation writ in How confident are you that your sources Seventy-two per cent of journalists and private sector is adequate to protect Almost 90 per cent of the 1292 people who 40 the past two years? would not be susceptible to being said Australia’s defamation laws made whistleblowers? completed the online survey believe that identified [through metadata]? reporting more difficult and, while only press freedom has worsened over the past 20 11.8 6.3 per cent had received a defamation decade, with just 1.5 per cent saying it had 6.2 7.0 1.5 1.2 1.5 writ in the past two years, almost a got better. NO 0 quarter of journalists (24.4 per cent) NO 93.7% 90% Not Journalists Non-Journalists Total said they had had a news story spiked YES Very unconfident YES confident within the past 12 months because of 6.3% 10% 8.9% 60 56.0 55.1 54.8% 51.9 Better (%) Worse (%) The same (%) fears of defamation action by a person Very confident 50 mentioned in the story. Somewhat 5.6% confident Overall, there are negative perceptions Almost two in five journalists – 40 36.7 30.7% about the health of press freedom among 36.7 per cent – said information from a 28.7 both journalists and non-journalists, with confidential source whose identity they Do you, or your employer, take steps to 30 26.6 a greater level of concern among non- had protected had led to the publication ensure that you do not generate metadata journalists (72.5 per cent compared to 60.4 or broadcasting of a news story, but that could identify a confidential source? 20 16.5 In the past 12 months, have you had a Concerns about restrictions on court 14.9 per cent). Working journalists had a slightly only 10 per cent believed legislation was news story spiked because of fears of a reporting are highest in Victoria, where 8.5 more positive view of changes to press adequate to protect public sector and defamation action? 10 25.8 per cent of respondents said they 2.9 freedom over the past decade; with 11.8 per private sector whistleblowers. 0.9 1.3 YES had been impacted by the issue of a cent saying it was the same, compared to 0 Despite more than two years of laws 43.7% suppression or non-publication order 6.2 per cent of non-journalists. NO Journalists Non-Journalists Total which allow government agencies to YES 56.3% by a judge and magistrates, compared access journalists’ computers, mobile 24.4% to 14.2 per cent in other jurisdictions. Poor (%) Good (%) phones and other metadata, fewer than NO 75.6% Very poor (%) Very good(%) TOP10 half (43.7 per cent) said they or their In Victoria, 72.7 per cent of journalists PRESS FREEDOM ISSUES: employer took steps to ensure they believed judges were actively did not generate metadata that could discouraging reporting of open courts, 1. National security laws When asked to rate the health of press identify a confidential source. Close to Is your employer keeping you informed compared to 52 per cent in other states; freedom in Australia in 2018, 70 per cent of 2. Funding of public broadcasting two-thirds (63.7 per cent) said they were of changes to national security laws and and 82.4 per cent of those impacted in respondents rated it as poor or very poor, 3. Government secrecy not confident that their sources could how they may affect your journalism? Victoria believed the court’s decision and just 1.3 per cent rated it as very good. be protected from being identified from was excessive, compared to 69 per cent 4. Freedom of information their metadata. in other states. The survey was conducted online by 5. Defamation YES MEAA between February and April this Similarly, only 26.6 per cent of 26.6% year. The aim was to collect data on the 6. Whistleblower protection journalists said their employer kept NO 73.4% Mark Phillips is the MEAA main concerns about press freedom to 7. Political attacks on journalism them informed of changes to national communications director help inform MEAA’s campaigning on press 8. Metadata retention security laws and how they may affect freedom issues. their journalism, although only 16.3 9. Court suppression orders per cent said their reporting had been It was open to all members of the public, hindered by national security laws. with 270, or a fifth of the respondents (20.9 10. Journalist shield laws per cent), identifying as currently working CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 10 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 11

The Open Courts Act made several Advocate to argue the public interest in Dixon J concluded that special damages THE LAW significant changes to the law. suppression order considerations could amounted to approximately $3.9 million fulfil this role. in the form of the loss of a chance of a Firstly, it abrogated the common law • Tailor-made model orders. There is a new screen role in the period following BY PETER BARTLETT, DEAN powers of inferior courts to make trend of judges uncritically adopting the release of Pitch Perfect 2. Further and LEVITAN AND ADELAIDE suppression orders so that they now rely past orders as templates for their own. perhaps most critically, Dixon J assessed exclusively upon statutory powers of Often these templates are inherently general damages, including aggravated ROSENTHAL suppression. problematic because they are ambiguous, damages, at $650,000. In doing so, Dixon too broad or go beyond the powers of J was prepared to lift the statutory cap of Secondly, it raised the bar or clarified the the court. Therefore, it may be beneficial $389,500 that ordinarily applies for non- grounds on which a suppression order to devise a range of model orders, economic loss. could be made. specially tailored to circumstances where suppression orders can be granted. Dixon J’s view is that the cap may be Thirdly, it limited the power of inferior circumvented in circumstances of courts to make broad suppression orders The Vincent Review was released by aggravated damage, which he deemed to (relating to material extraneous to a the Government in the last week of exist on three main grounds: proceeding rather than information derived March 2018. The report’s findings • Bauer Media paid an anonymous source from proceedings). are disappointing. Victoria has more for information without properly suppression orders made than the rest investigating the allegations, which Fourthly, it abolished the power of of the country combined. The report’s was evident from internal emails sent inferior courts to make “proceedings- recommendations will not change this between the Bauer Media journalist and plus” orders – those orders that went saturation. The Open Courts Act should be the source of the information; beyond proceeding suppression orders or renamed to reflect the effect it actually has. • it knew the imputations being conveyed broad suppression orders. to be false and proceeded to publish nonetheless; and n REBEL WILSON: A LANDMARK Finally, the Act sought to introduce • it then also repeated the offending a statutory presumption of openness DEFAMATION CASE imputations by repeatedly publishing as a means of curbing the making of The past 12 months has seen a number of similar articles with similar imputations Rebel Wilson outside her Supreme Court defamation suppression orders. defining defamation cases in Australia, yet in an attempt to keep the information hearing. IMAGE COURTESY none more so than Wilson v Bauer Media circulating, current and to neutralise JASON SOUTH, FAIRFAX PHOTOS However, the above reforms were ineffective Pty Ltd (Rebel Wilson case). Wilson’s response to the articles. in reducing suppression numbers. Victoria, in fact has more than double the number On September 13, 2017 Justice Dixon Bauer Media’s conduct was considered to be of suppression orders made in every other handed down the judgement in the Rebel malevolent, spiteful, lacking in bona fides, he media landscape is fast-changing. and the protection of individuals from any material available online is not state and territories combined. Wilson case in the Supreme Court of unjustifiable and improper. Dramatic cultural and social change reputational harm. subject to any time limitations. Victoria. The plaintiff, actor Rebel Wilson, has provided further impetus for • A UK-style “serious harm” test should be To address this issue, the following options was awarded more than $4.5 million In rejecting the ordinary statutory cap on Tassessing our media laws and how At present, the NUDL is complex, introduced. may be considered: in damages over a series of articles in general damages, Dixon J said: they respond in a changing environment. incoherent and substantially stacked • Greater education on existing provisions. 2015 that were found to be defamatory. “…only a substantial sum of damages Several important and high-profile cases, against media defendants, thereby stifling The NSW Attorney-General Mark The over-issuing of suppression orders This represents the largest payout for would be adequate to convince the public in addition to wide-scale legislative review public-interest journalism. The Rebel Speakman recently said that he was can largely be blamed on judges not a defamation case in Australian legal that Wilson is not a dishonest person and in the last 12 months, indicate that we Wilson decision (see below) is a striking “committed to ensuring that defamation adhering to the current regime. For history. bring home the gravity of the reputational are possibly on the cusp of transformative reminder of the need for vital defamation law is reviewed in light of technological example, section 13 of the Act requires injury… [and] unless substantial damages media law change. Below are some of the law reform in the near future. change” and the government “intends to that an order not apply to any more Wilson sued Bauer Media over one print are awarded there is a real risk that the key changes that have occurred in the past complete a review of defamation law”. information than is necessary to achieve edition article in Woman’s Day magazine public… will wrongly conclude that the year and how we can expect it to re-shape Among the reforms, legislators should the purpose for which it is made. This and seven articles on the websites. The articles were trivial…” the media law landscape in the near future. consider: n REVIEW OF THE OPEN COURTS provision should mean “blanket bans” articles broadly alleged that Wilson was • Reversing the onus of proof in relation ACT: WHAT CAN BE DONE TO are rarely issued – but in reality they a serial liar and had lied in relation to her The decision in the Rebel Wilson case to the truth defence. This would REVERSE SUPPRESSION ORDER make up 37 per cent of suppression age, her real name and her upbringing. has profound implications for freedom of n DEFAMATION LAW REVIEW: require plaintiffs to show that what NUMBERS? orders. Further, time requirements speech in Australia. The media fraternity TOWARD A FAIRER AND MORE has been published about them is on suppression orders are still not Wilson brought claims for loss of earnings had come to rely on the certainty provided EFFICIENT DEFAMATION REGIME false, rather than defendants fighting The Andrews Victorian Government called being adhered to in 7 per cent of cases. in the 18 month period from May 2015 by the $389,500 cap on damages for non- to establish that it was unequivocally for submissions to the review of the state’s Greater professional education on the to December 2016, resulting in, what she economic loss. Dixon J’s willingness to A parliamentary committee report on the true. This would provide the space for suppression order laws. The Open Courts requirements of the Open Courts Act determined, was a gross loss of $6.77 subvert the cap sends a concerning warning National Uniform Defamation Law (NUDL) journalists to more confidently and Act 2013 (Vic) was introduced to remedy would likely address this issue. million. to all media publishers, namely that this has recommended that the Council of freely report on important matters of the perceived over-issuing of suppression • Creation of an Office of the Open Courts may be the first of many spiralling and Australian Governments (COAG) undertake public interest. orders by Victorian courts. By limiting Advocate. Given the high volume of Ultimately, the jury of six established unpredictable defamation payouts. a national review to reform the laws to • Give force to the qualified privilege media reporting, this trend of suppression suppression order applications, it would that each of the defendant’s publications ensure they do not thwart public-interest defence. At present, the defence is was seen to threaten the “open justice be unreasonable to expect the media to conveyed defamatory imputations in the Such is the high degree of concern shared journalism. Attorney-General Christian available in theory only and very rule”. However, the legislation has not turn up and oppose every order. However, terms alleged by the plaintiff and they by media publishers; they joined forces Porter has conceded that he does not rarely succeeds at trial. caused a notable reduction in suppression having a “contradictor” in the court may rejected the defences of justification, to appeal against the damages amount believe that “the balance [is] perfect” in • Set a time bar on individuals suing orders and now subsequently requires greatly reduce the number of orders triviality and qualified privilege raised by in the Rebel Wilson case. Among the trying to promote responsible journalism over online publications. At present, further review. granted. The creation of an Open Courts the defendants. army of appellants was Channel Nine, CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 12 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 13

Channel Seven, Fairfax Media and the ABC. The robustness of the Northern Territory law warrant can be granted in response to is However, the Victorian Court of Appeal is yet to be tested. Whether this exception significantly broadened. rejected the media’s right to intervene. will be broadly applied to silence government whistle blowers remains to be seen. n #METOO: LOOKING FORWARD The seminal consequences of this decision The #MeToo movement has brought about is the apparent risk that journalists and Given the uncertainty of how this new law an emerging trend of women speaking media publishers will be conscious of the will be applied and the lack of consistency out against the sexual harassment or risks of such a high windfall against them across states, calls for a uniform sexual misconduct that they have been before preparing and publishing vital pieces commonwealth regime are compelling. subjected to. We should be supporting of journalism. This would clarify confusion surrounding women who have the courage to speak which journalists are protected. out. Unfortunately, however, Australia’s A decision that may serve to stifle free speech defamation laws can be used by men to and unsettle the integrity of journalism is a n THE JOURNALIST INFORMATION threaten to institute proceedings against decision worth seriously questioning. WARRANT REGIME women who make allegations against In 2015, amendments were made them and the publishers who disseminate Judges like to talk about the scales of to Telecommunications (Interception the allegations. This may have the effect justice. Be in no doubt, the scales of justice and Access) Act 1979 which required of suppressing both the articles exposing are tilted in favour of the plaintiff. telecommunications and internet service the sexual misconduct and thwarting the providers to collect and retain user data. movement of women who are courageously n SHIELD LAWS INTRODUCED IN coming forward to tell their stories. THE NORTHERN TERRITORY This data is able to be accessed by The Northern Territory has followed government agencies in some circumstances. In December 2017, Geoffrey Rush filed The Victorian Supreme Court. Image the lead of other Australian states and defamation proceedings against The Daily SUPPRESSION ORDERS courtesy Cathryn Tremain, Fairfax Photos territories and introduced its own shield If a government agency wants to access a Telegraph, which published allegations that law regime. journalist’s telecommunications data or Rush behaved inappropriately towards a their employer’s telecommunications data female cast member in a Sydney Theatre ictoria and South Australia MEAA believes Victoria’s review being • The spate of redundancies has also Shield laws ensure that journalists cannot for the express purpose of identifying a Company play. Rush stated that he was continue to be the two legal conducted by former Victorian Supreme seen the most senior and experienced be forced to reveal the identity of their journalist’s source, a Journalist Information taking the action “in order to redress the jurisdictions with a remarkable Court appeal judge Frank Vincent should first journalists, who are also usually the most sources and provide legal protection Warrant is required. The warrant will be slurs, innuendo and hyperbole that they Vpropensity to make suppression consider the changing media environment highly remunerated, pushed out of media for those who want to preserve their granted where the Minister believes that have created around my standing in the orders designed to prevent some or all and the impact that is having on court companies by their employers, only to be client’s confidentiality. These laws are the public interest in issuing the warrant entertainment industry and in the greater aspects of court cases being reported reporting. Media organisations have been replaced by less experienced journalists extremely important as journalists rely outweighs the public interest in protecting community.” in the media. While the media would confronted by enormous pressures. Due to who may not be as highly trained and/or on sources to keep business, government, the confidentiality of the source. If this not wish to report anything that would the disruption caused by digital technology, mentored as their predecessors; courts and individuals accountable. Often warrant is granted, it remains secret and Then, in another high profile defamation improperly affect a court case, the sheer media outlets are faced with declining • The competitive pressures that arise from information provided by these sources is the journalist is unable to challenge it. case, actor Craig McLachlan issued weight of orders being made in these two revenues to fund editorial content. digital technology have led to additional given on the condition that their identity Further, the warrant can last up to six proceedings in early 2018 against Fairfax states suggests something is awry. problems: the “rush to be first” with the will be kept secret. Shield laws serve as a months and grants access to data up to two Media, the ABC and his former co-star Regular rounds of redundancies and other news is a critical commercial imperative, guarantee of this and seek to encourage years old. Christie Whelan Browne, who is one of the Thankfully, a review of the Victorian cost-cutting programs have dramatically and this, coupled with fewer production other sources to come forward with women who accused McLachlan of sexual problem may finally have listened to reduced editorial resources and staff. While staff (sub-editors) to check news stories stories of public importance without fear This regime on its own threatens the harassment. We also saw the Chris Gayle the concerns of MEAA and other media some new and niche media outlets have before they are published, means there of repercussion. privacy and liberty of journalists and case proceed to trial and allegations against organisations. While it is hoped that the emerged, they operate with far fewer staff are fewer checks and balances available in their sources. However, coupled with the the Melbourne Lord Mayor. recommendations of the review will go than metropolitan daily newspapers. newsrooms; and The Northern Territory’s new legislation proposed National Security Legislation in some way to provide a remedy, they • Media companies have fewer financial exists alongside that of the ACT, VIC, Amendment (Espionage and Foreign We should all be alert to the risk that high may also act as a template for a national This media environment is putting dire resources to fund a legal challenge to NSW, TAS and WA, as well as the Interference) Bill 2017, this danger is profile cases, such as the ones mentioned, approach. In a modern digital media pressure on the media as it tries to fulfil its ensure a public interest news story is overarching Commonwealth statute. In magnified. do not serve to silence more women from environment, media organisations and role in a healthy functioning democracy: published or to defend themselves should each jurisdiction, there is a presumption speaking out if and when they face sexual journalists must be able scrutinise and • Across the board, there are far fewer an action be brought against a journalist that the journalists will not have to give Under the Bill, journalists could be jailed harassment. report legitimate news stories about the journalist “boots on the ground” to report and the media outlet. up their sources. This presumption is just for receiving or handling documents judicial branch of government without on issues in the public interest. Fewer generally qualified by a provision allowing that might harm Australia’s national n CHOOSING A COURT fear of lengthy, expensive court battles. reporters means less coverage of important These challenges are expected to exacerbate disclosure of sources where the public interests. It is expected that if these laws Plaintiffs have traditionally done pretty well issues, less time and opportunity to report, as the financial pressures continue to interest outweighs any likely adverse pass, the ability of government agencies in Australia’s Supreme Courts, especially On March 1, 2017 MEAA made a and a decline in the ability to properly erode the way the media has traditionally effect on the informant. Shield laws have to obtain a Journalist Information Warrant NSW. However, despite that, there are an submission to the review conducted scrutinise and pursue legitimate issues; functioned. Yet the expectation continues already been successfully relied upon will be made significantly easier. Where increasing number of defamation cases being by Judge Frank Vincent of Victoria’s • The journalists who remain behind after that the fourth estate must play its crucial in other states. In WA, journalists Steve a government agency can claim that a issued in the Federal Court (23 last year). Open Courts Act 2013 and the review’s the redundancy rounds have seen their role in a healthy functioning democracy. Pennels and Adele Ferguson were not warrant is in the public interest due to consideration of whether the Act strikes workload intensify to the point where not required to disclose sources relating to the national security reasons, it likely that Some think the reason is that these the right balance between people’s only are they having to do more, but new There is no doubt that, despite the best story on Gina Rinehart whilst in Victoria, the Minister will prioritise this over plaintiffs wish to avoid going before a jury. privacy, fair court proceedings and the technology means they must also now intentions, the media’s reporting on the similarly, journalists Nick McKenzie and protecting the source’s identity. If the public’s right to know. MEAA believes file stories for a multitude of publishing courts has suffered due to the pressures Richard Baker avoided disclosing sources new legislation prescribes that merely Peter Bartlett is a partner; the Act, intended to address concerns platforms throughout the day as well outlined above. Fewer experienced on alleged mafia boss Antonio Madaferri receiving documents (as opposed to Dean Levitan is a lawyer and Adelaide that suppression orders were being as personally promote those stories on journalists are available; they are working and also on Securrency. publishing them) constitutes a threat to Rosenthal is a graduate with law firm made too frequently, has failed to social media to push web traffic to their under intense pressure to file stories while national security, the conduct for which a Minter Ellison achieve its aims. employer’s online news web site; needing to be aware of the existence of CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 14 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 15

court orders and, at times, operating under prevalence in Victoria. It was hoped that If that is so, then that is a concern. In March part of a proceeding be heard in closed court or under s30(3) may make a closed court examined the scope of the suppression the intimidation of defamation actions and the Act would remedy this propensity of the 2013 the Gazette of Law and Journalism or closed tribunal; or that only specified order if disclosure would be contrary to the orders being issued in such copious subpoenas that threaten their journalism and Victorian courts to make suppression orders reported a 1000 per cent increase in the persons or classes of persons may be public interest. MEAA contends that this numbers: their sources. so readily. However, a news story in The Age number of court suppression orders in NSW present during the whole or any part of a exception is illogical and wrong and should in October 201538 stated: since 2008.44 proceeding.” be denied to the Coroners Court to ensure “… many of the orders – 37 per cent on our MEAA believes that given this media consistency throughout the Act. analysis last year – prevented reporting of any environment will not necessarily ease, it is Victorian courts are still issuing hundreds of There is evidence that the Open Courts Act n MEAA’S RECOMMENDATIONS aspect of a case at all. As well, 9 per cent were important that the courts and the media suppression orders a year, including blanket has failed to reduce the number of orders A MEAA Media member and senior As mentioned above, Bosland notes 63 still being issued without end dates (contrary seek ways to work together in the public bans on information [that] prevent media being issued by Victorian courts. In his court reporter with a daily newspaper, per cent of proceedings-only orders are to the terms of the Open Courts Act) and 7 interest, to improve the ability to report organisations from even reporting that a case paper Two Years of Suppression under the commented in February 2017: blanket bans, up 11 per cent from an earlier per cent did not specify on what grounds they on the courts, and for the court system to is underway, despite new legislation in 2013 Open Courts Act 2013 (Vic)45, Melbourne Another day, another suppression with no Bosland study that examined the making of were granted.”51 function with the public interest in mind. called the “Open Courts Act”. Law School senior lecturer and deputy notice to media. It’s become standard practice suppression orders in Victoria prior to the director of the Centre for Media and to ignore Open Courts. Open Courts Act. MEAA believes that some orders are n CONFLICT BETWEEN THE The findings have prompted calls for a Communications Law at the University of excessive in their scope and are unclear MEDIA AND COURTS government-funded “Office of the Open Courts Melbourne Jason Bosland noted: “What is MEAA recommended that consideration be Bosland notes that “administration of as to why they were made. MEAA MEAA is concerned that for some time Advocate” to argue in courts against the apparent… is that the overall number of given to improving the speed of notifications justice” and “personal safety grounds” recommended that the exact specifications the courts have displayed a lack of suppression of information. regular suppression orders made by the to news media outlets, with the possibility are the most frequently relied on for the of an order and the reasons behind a understanding of the role of the media courts per year has remained relatively of some confirmation of receipt so that making of suppression orders. But Bosland suppression order, as well as its scope and and disdain for the media’s concerns about In the financially straitened times that stable… despite the introduction of the OC all parties are assured the media has been also notes that 31 orders in his dataset “did timeframe, must be satisfactorily stated the suppression order system. It is also media organisations now find themselves, Act.” advised of the making of an order and that not specify the relevant statutory ground and accepted before any order can be made apparent that many judicial officers operate it is unreasonable to expect them to the order has been acknowledged. or grounds upon which they were made and that these arguments be included as under a presumption that it is the courts constantly present themselves to the In short, the Act is failing to make the despite this being mandatory requirement part of the notification system. that should determine what is in the public court in order to challenge each and every operation of the courts more “open”. MEAA also recommended that ways be of the OC Act”.49 interest. suppression order which are currently (as at sought to allow the notification system to MEAA also noted the situation that arose February 2017) averaging “almost one a day Indeed, it is interesting to note the provide initial necessary information that He adds: “Notably, 73 per cent of orders in the Melbourne Magistrate’s Court in In a speech delivered to the Melbourne Club for the court year”.39 comments made by Justice Simon Whelan allows the media to readily identify persons (354/486) merely repeated the statutory 2013 where a suppression order was made on Friday November 13, 2009 (prior to the to the Melbourne Press Club46 in July 2015. and issues surrounding each suppression grounds… Specifying the purpose in this that prohibited the publication of any Open Courts Act), former Victorian Supreme In November 2016 The Age editorialised: He noted that the introduction of the Open order, with the full details of the order to be manner fails to meet the requirement in information that might identify a particular Court Justice Betty King boasted that she “… simply challenging suppression orders is Court Act had not led to judges issuing fewer included in depth in the .pdf document but s13(2) and is therefore inadequate. This witness “in any media outlet, newspaper, was “probably responsible for the majority not as easy as it sounds. One reason is the suppression orders: that the database utilise a “search” function is because s13(2) requires that both the radio, television or internet or any other of suppression orders imposed in Victoria sheer number of such orders being issued – “In Victoria we know how many orders we to allow media outlets to quickly identify purpose of an order and the grounds upon publication for a period of 999 months”. in the last three years”35 and that for every 254 across the Supreme Court, the County make and the number has not gone down. We and locate persons and issues included in which it is made be specified in the order.”50 As MEAA’s annual report into the state of worthy media report there were equally Court and the Magistrates Court in the year really want to have a situation where we make the suppression order. press freedom in Australia noted: “Towards reports that were “inaccurate, salacious, following the passage of the Open Courts Act very few orders… we could have less than we MEAA recommended that both the purpose the end of the 21st century, one of our mischievous, morally indefensible and just in December 2013, which was supposed to do… There is a problem about orders being MEAA also expressed concern that the courts and the grounds for the making of any descendants can apply to the court to lift plain prurient”.36 limit the number.” 40 made in relation to matters that are already are presuming they are the sole determinants suppression order must be clearly set out. that order.”52 addressed by legislation or the sub judice rule. of what is in the public interest. This is not Consideration should be given to ensure As recently as October 2015, Victorian Chief The newspaper went on to say: so, and the Act does not say this is a role that the purpose and grounds are clear, Section 12(3) of the Act, states: “If the Justice Marilyn Warren37 (who left office On top of this, the Victorian Civil and Bosland goes on to note that under the Act, for the courts (except for matters before the specific and apply directly to reasoning for period for which a suppression order in October 2017) wrote about the media’s Administrative Tribunal and the Coroner’s 63 per cent of proceedings-only orders are Coroners Court – see below). the making of an order. Vague, repetitive operates is specified by reference to a future challenging of suppression orders: Court also use suppression orders regularly “blanket bans” – the most extreme form of and non-specific grounds should be event that may not occur, the order must “in the public interest” to stop publication of proceedings-only suppression orders that Indeed, the comments of former Justice deemed inadequate. also specify a period from the date of the It needs to be remembered that the media evidence. can be made by a court – mainly made in Betty King cited earlier include her order (not exceeding five years) at the end has its own interests here: it wants to attract the Magistrate’s Court. Bosland states: “The noting that she had “stopped” a television Section 13 of the Act requires that “a of which the order expires unless sooner readers, viewers and online participants. And having lawyers appear in court on data on the scope of the orders of orders current affairs news story because: “The suppression order must specify the revoked.” This appears to have led to courts Crime sells. our behalf is not cheap. We do challenge is significant. It indicates that the OC Act educational content of this program is, in information to which the order applies with lazily making orders to last for five years some, but expecting us to challenge the has had no overall effect whatsoever in my view, non-existent. The public interest sufficient particularity to ensure that the without justifying why that time frame has MEAA believes these remarks traduce the daily procession of suppression orders is narrowing the scope of orders made by the in having it played is, in my view, equally order is limited to achieving the purpose been chosen. media to purely commercial entities while increasingly unrealistic.41 [MEAA emphasis] courts… Furthermore given the extreme non-existent.”48 Judges should not be for which the order is made; and the order failing to acknowledge the public’s right nature of such orders… it must be pointed making decisions to make a suppression does not apply to any more information Bosland notes that a significant number to know. MEAA also believes the Chief In response, Chief Justice Warren noted in out that it is highly improbable… that such order to stop a news program on the than is necessary to achieve the purpose for of orders “did not contain an appropriate Justice’s comments fail to acknowledge the the article cited above: a large proportion of blanket-ban orders in grounds that they consider its content which the order is made; and it is readily temporal limitation”. Several orders, difficulties of the media’s current operating Victoria is the only state that maintains a the dataset could be justified.”47 is not educational and not in the public apparent from the terms of the order particularly those issued in the County and environment, as outlined above. database of all suppression orders issued – so interest. what information is subject to the order. A Supreme Courts, were made to operate for a it is therefore difficult to compare the number It should also be noted that the Act operates suppression order must specify the purpose period of exactly five years. The narrow view expressed by the Chief of orders made here against other Australian on a presumption of open court. Section Section 4 of the Act says there is “a of the order; and in the case of a proceeding Justice may go some way to explain some of jurisdictions.42 28 of the Act states: “To strengthen and presumption in favour of disclosure of suppression order… must specify the Bosland says: “This is a curious result the difficulties the media confronts with the promote the principle of open justice, there information to which a court or tribunal applicable ground or grounds on which it because in terms of necessity of duration, suppression orders issued by Victorian courts. Despite this, the Chief Justice went on to is a presumption in favour of hearing a must have regard in determining whether is made.” there is nothing significant about a claim: proceeding in open court to which a court to make a suppression order”. five-year period of operation that would n TOO MANY ORDERS The Victorian Supreme Court figures are or tribunal must have regard in determining It is clear that orders are being made that explain the prevalence of such orders… It The media’s major concerns with certainly on par with our New South Wales whether to make any order, including an Under s18(2)(b) only the Coroners Court do not meet the requirements of section appears that it came only be attributed to suppression orders have been their counterpart, however.43 order under this Part that the whole or any may make a proceeding suppression order 13. The Age editorial cited earlier also the wording in s12.”53 CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 16 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 17

MEAA recommended that suppression newsworthy and worth reporting. It should This “service” amply demonstrates the orders should be made for narrower time not be up to the news media alone to play confused perspective: if the media doesn’t frames, not utilising timeframes of months the role of contradictor. turn up to play contradictor, a barrister or years (this to be determined by what will appear when requested by a judge. The the court determines as being practical). A This responsibility assumed by the Act Chief Justice’s point again demonstrates narrower time frame should be the default to be imposed on the media doubtless that this is about trying to create a stop-gap and these time frames can only be extended requires all news media organisation to remedy rather than deal with the media’s by a subsequent application to the court, not only be mindful of all applications for legitimate concerns about the number so that the emphasis is always on the suppression order but to also have legal of suppression orders being issued and disclosure of information at the earliest advice “on tap” to be able to assess and the inability of the media to cope with opportunity rather than ongoing suppression advise on whether a review of an order challenging every one. of information with little or no regard to the should be sought, and for news media to requirement to inform the public then fund legal actions to seek a review of A wiser course would be the creation of an an order. Office of the Open Courts Advocate to argue n THE NEED FOR AN the public interest during the making of an INDEPENDENT CONTRADICTOR In essence, the underlying belief of the Act order. is that the news media should be expected As the then attorney-general said during to act on suppression orders at every MEAA recommended the creation of an the second reading of the Open Courts Bill opportunity. Office of the Open Courts Advocate to argue in June 2013: the public interest in suppression order Free reporting by the media of what is This is unreasonable. It is not a role that considerations – in advance of the issuing happening in Victoria’s courts is vital to the news media organisations should be of the order and at any subsequent review community’s right to know.54 expected to perform, particularly as their of an order. The Advocate should play the resources are already stretched in running role of contradictor and fill the gap formerly Specifically, section 11 of the Bill: their day-to-day business operations in occupied by media lawyers representing Requires the court or tribunal to take the current tough environment for media media outlets – to argue for the public DEFAMATION Defamation law is in need of reform reasonable steps to ensure that relevant businesses. The media should not be interest. This does not mean that media news media organisations are notified of an considered a judicial functionary – which is outlets will be frozen out from such debate. application for a suppression order where the underlying intention of the Act. The media should always be afforded the notice is given under clause 10. opportunity to argue its position. There is also a clear failing of the Act in n the wake of the Senate Select legitimate news stories in the public The regime does not have a review clause. The intention is that because news media its expectation that media organisations MEAA also suggested training in the Committee report into the Future of interest and applying scrutiny to the However, in 2011, after five years of organisations are more likely to act as a can litigate every order they oppose. The role of the media and how professional Public Interest Journalism, there are rich and powerful because they fear their operation the NSW Department of Justice contradictor to such applications, that this changed media environment means such journalists work as well as consideration Isome encouraging indicators that journalism may result in costly, lengthy undertook a review of the defamation laws. will provide courts and tribunals with the resources are not available. And that of public interest matters from the Australian legislators are finally realising litigation. When the law can be used to That review was not concluded and not benefit of a contradictor making arguments means that the public’s right to know is media’s perspective may assist the that Australia’s defamation law is in need muzzle the media in such a way, both presented to the NSW Government. in favour of the principle of open justice being eroded. courts and tribunals to better manage of reform. democracy and press freedom have been and disclosure of information both in the consideration of suppression order suppressed. MEAA, as a member of the Australia’s relation to whether the order should be made The attitude of judges outlined in their applications. In its submission to the Committee’s Right To Know (ARTK) industry lobbying and, if made, its scope and duration.55 [ unhelpful remarks cited above also inquiry56, MEAA said defamation actions Leading media lawyer Peter Bartlett, group, supports an ARTK campaign for MEAA emphasis] suggests that even the courts themselves MEAA also believed it was important to require media companies to “lawyer up” at writing in MEAA’s 2017 annual report into a review of the operation of Australia’s believe the media should always present have a round table of representatives of the enormous expense with the potential for the state of press freedom in Australia,57 uniform defamation law regime. In July MEAA believes the second paragraph exposes itself before a court to oppose an order state government, the courts and the media costly damages and costs to be awarded quoted leading media QC Matt Collins who 2015 ARTK called for the law to be updated a flaw in the thinking behind the Act. without understanding that the media is meet to examine ways to improve relations against them. Defamation has evolved into said “as soon as a publisher is found to so that it could rectify problems that had being swamped with suppression orders for the best outcomes for the operation and an immense threat to media businesses, have made a factual error and no matter become evident after almost 10 years of The belief that “news media organisations and is incapable of mounting expensive reporting of the courts. and to press freedom itself. how minor, in practical terms, the plaintiff operation and also to reflect changes made are more likely to act as a contradictor” legal challenges to them. The judge’s succeeds”. He added that it is relatively easy in Britain when that country’s law was and that that would benefit the courts in own perspective is that the media is the There is also scope for a national There is a dire need for reform of for a defamation plaintiff to establish that updated to reflect the impact of digital providing them with someone to make contradictor. discussion of the suppression order issue. Australia’s uniform national defamation he has been defamed. It is then up to the publishing. ARTK’s aim was to bring the arguments in favour of open justice and MEAA recommended the Law, Crime and legislation that allows people to be paid defendant to establish that even though the law in line with international best practice disclosure of information exposes a failure It is interesting to note that the Chief Community Safety Council of the Council tens of thousands of dollars damages plaintiff has been defamed and has suffered and remove areas where the uniform laws of section 4 of the Act: Justice indirectly acknowledged this of Australian Governments for a way to for hurt feelings without ever having to loss, the plaintiff should not be awarded have not proved successful or where they To strengthen and promote the principles problem, when she said: develop a uniform national approach to demonstrate they have a reputation, let damages. That is a huge hurdle for a are inconsistent or do not work as intended. of open justice and free communication of To further strengthen public confidence in the suppression orders so that the current alone one that has been damaged. defendant, and one that is rarely achieved.” Another aim was to ensure that criminal information, there is a presumption in favour process, the Supreme Court will soon utilise a massive imbalance in the issuing of orders defamation is repealed and removed from of disclosure of information to which a court generous service of the Victorian Bar, where can be addressed. The immense cost burden not only The uniform national defamation law the statutes. or tribunal must have regard in determining barristers will appear – free of charge – when has a dire economic effect on media regime commenced operation in January whether to make a suppression order. requested by a judge, to make submissions on On March 28, 2018, the Victorian Attorney- organisations already struggling with 2006 by agreement among the states at the At the end of 2015, the meeting of the public interest grounds, in the absence of any General Martin Pakula released the Vincent profitability in the wake of digital Council of Australian Governments (COAG). various attorneys-general that makes up The news media should not be required to other contradictors such as the media. This is report and the Government’s response to its disruption but there is also a considerable Only the states are signatories to this COAG COAG’s Law Crime and Community Safety constantly monitor, analyse and consider an initiative of the courts themselves together recommendations. “chilling effect” on public interest agreement, the federal government is not a Council (LCCSC) the issue of a uniform potential and possible action about court with the Victorian Bar, one of the state’s most journalism that intimidates journalists signatory. Any changes to the law must be defamation law review and update was cases that the media may believe are highly respected independent legal bodies. and media organisations from reporting agreed by all of the states. being discussed “below the line”. CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 18 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 19

Turkish President Recep Tayyip The NSW Government was tasked with “Some submitters suggested that implemented for more than a decade Erdogan finalising its 2011 review; NSW would be some elements of Australia’s legal without assessing potential areas that used a template for a broader discussion framework had a ‘chilling’ effect on could be improved. among all the jurisdictions so that the journalists reporting freely in the uniform defamation legislation could be public interest. These included: recent “Given the National Uniform Defamation updated. The aim was for the review to be reforms to national security legislation; Law 2005 was agreed in the COAG context presented to the NSW attorney-general defamation and libel provisions, as well and given that it covers the majority of which would then result in a cabinet paper as inconsistency across jurisdictions; defamation law in Australia, it would be being presented to the NSW Cabinet shield protection and whistleblower appropriate for the Commonwealth to sometime in 2016. The paper would be provisions covering journalists and investigate how it can work through this expected to recommend issues to be further their sources; as well as copyright forum to assist the states and territories considered by the Defamation Working provisions… to review and reform our defamation NATIONAL Group (DWG) which consists of officials laws, or to reinvigorate efforts already from all jurisdictions. The DWG would then “A significant number of witnesses and underway to do so, to ensure those laws make recommendations to the LCCSC. It submitters stated that Australia’s defamation are consistent with a viable, independent was anticipated that the LCCSC would then and libel laws played a significant part in public interest journalism sector, work SECURITY create a mechanism of public consultations. curtailing journalists’ efforts to pursue public appropriately with whistleblower interest stories. This was not necessarily due protection regimes, and generally operate There appears to have been no further to the damages awarded for publication of effectively in the digital age. progress. material found to be libellous, but the legal costs of defending defamation cases.” In recommendation 7, the committee said: MEAA believes it is high time the “the Commonwealth work with state and defamation law regime in Australia was In its recommendations, the committee territory jurisdictions through the Council updated. In its submission to the Senate notes that “the Commonwealth worked of Australian Governments to complete select committee, MEAA urged that closely with the states and territories a review of Australian defamation laws, the Standing Committee on Law, Crime to develop a uniform set of defamation and subsequently develop and implement and Community Safety move swiftly to laws in 2005. The committee notes any recommendations for harmonisation review and reform the national uniform indications that there appears to be an and reform, with a view to promoting defamation law regime. appetite for COAG [Council of Australian appropriate balance between public Governments] to review the framework interest journalism and protection of The Senate select committee of existing defamation laws, especially individuals from reputational harm.”58 subsequently reported, noting that: considering this framework has been THE CREEPING CRIMINALISATION OF JOURNALISM BY PETER GRESTE

he New York-based Committee for around a little, there appears to be a clear of “promoting terrorist ideology”, or the Protection of Journalists (CPJ) is turning point: in 2003, when the numbers of being unpatriotic, or of seeking to Tblunt in its assessment of the state of journalists killed and imprisoned started legitimise terrorism. At best, it meant of journalism around the world today: to climb from the historic lows of the late being demonised and condemned; “There has never been a more dangerous ’90s, to the record levels of the present. at worst, being charged – as my two time to be a journalist,” it declares in its colleagues and I were in Egypt – with #FreeThePress campaign59. Although coincidence is not the same collaborating with terrorists. as causation, it seems hard to escape According to the CPJ’s count, by the end of the notion that the War on Terror that And that leads to the second implication: last year, 262 journalists around the world President George W. Bush launched after the War on Terror gave politicians the were in prison for their work. That is the 9/11 had something to do with it. “In this scope to grant governments a host of new highest on record since the organisation war, either you are with us, or you are “national security” powers and, in the began tracking the numbers in 2000. with the terrorists,” Bush ominously told process, redefine “terrorism” so loosely as a historic joint session of Congress soon to include whatever they wanted. US-based human rights organisation after the attack on the Twin Towers. For Freedom House agrees. Its grim headline journalists, that stark statement had two Take Turkey. in the 2017 report is Press Freedom’s devastating implications. Dark Horizon.60 It goes on to say, “global In July 2016, a faction within the Turkish press freedom declined to its lowest point First, the War on Terror presented a Armed Forces called the Peace at Home in 13 years in 2016 amid unprecedented binary choice: you are on one side Movement tried to overthrow the threats to journalists and media outlets of the line, or the other, making it government of President Recep Tayyip in major democracies and new moves by impossible to exercise genuine balance Erdogan. The attempted coup failed, authoritarian states to control the media, and neutrality in reporting the conflict and Erdogan accused the exiled Gullen including beyond their borders.” – one of the most basic ethical tenets Movement of being behind it. He then of our craft. Anybody who sought to declared anybody associated with the If we appear to be heading into journalism’s understand what drove the extremists, movement, and soon after, anybody who long, dark night, when did the sun start to or challenged the government’s policies challenged the government, of being disappear? Although the statistics jump in the war, immediately became accused “terrorists”. Erdogan began rounding CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 20 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 21

a much wider trend. Around the world, Professor George Williams from the More troubling is the offence of the CPJ reckons about two-thirds of all University of New South Wales has been “promoting terrorist ideology”– a crime journalists in prison are on charges that tracking national security legislation disturbingly similar to what we were could generally be described as “anti-state” since al-Qaeda attacked the World Trade accused of in Egypt. So, interviewing such as terrorism, sedition, treason and so Center. Before then, he could find only one extremists in an attempt to understand on, quite deliberately echoing the national law on Australian statutes that referred what drives young men to join militant security rhetoric – and sometimes the to “terrorism” – a relatively obscure one groups could break the law. tactics – from more liberal democracies. from the Northern Territory – but since then, Australian governments have been Earlier this year, the attorney-general’s Take the United States, and President on something of a legislative spree passing office forced News Corporation website Barack Obama. some 70 laws dealing with national news.com.au to pull a story headlined security. That is understandable given the “Islamic State terror guide encourages Yes – Obama. For all his claims to perceived threat that terrorism now poses, luring victims via Gumtree, eBay”. The AG’s championing human rights and democracy, but according to Williams, many of those office cited section 9A of the Classification in the opinion of James C. Goodale, Obama laws “frequently included restrictions on (Publications, Films and Computer Games) was “worse than (President Richard) freedom of speech through new sedition Act arguing that the story “directly or Nixon” for press freedom. (Though to be offences and broader censorship rules”. indirectly” advocated terrorist acts. The fair, Obama was personally and actively Australian Press Council eventually said involved in the campaign for our release in At least four impose criminal sanctions the story had legitimate public interest Egypt.) for journalists, and at least 12 pieces of and ruled in favour of publishing,64 but not legislation curb freedom of speech. Others before it had vanished from the News Corp Goodale should know. He was The New York give the authorities extraordinary powers website. Times counsel in the paper’s 1971 fight that might be considered legitimate in a with Nixon to publish the Pentagon Papers time of war, but in a conflict as open ended Most recently, we have seen the – the leak of documents showing that as the War on Terror, we seem to be stuck government try to pass a raft of laws that previous administrations had lied about the with it. claim to protect Australia from foreign Vietnam War. interference. At the time of writing, the There is the Telecommunications legislation was still being debated, but US president Barack Obama was “worse than Nixon” for press freedom In an article published in 2013, Goodale (Interception and Access) Amendment (Data media critics complained they have been complained about Obama’s tendency Retention) Act 2015, which gives a host of so widely cast that they seemed to assume to use national security legislation to government agencies the power to examine any “unauthorised” communication shut down what Goodale regarded as the metadata of any Australian without a of classified information between a legitimate reporting. In particular, the warrant. The only exception is journalists; commonwealth civil servant and a up thousands of lawyers, academics and coup or terrorism more broadly. Thousands therefore part of a conspiracy to support Obama administration relied on the those agencies that want to look into a journalist was tantamount to espionage. journalists – anybody who dared question more have either been sacked or forced a terrorist movement trying to overthrow little-used Espionage Act passed in 1917 journalist’s metadata have to apply to the president’s legitimacy – as a threat to to resign, hundreds have lost their press the state by force. to prosecute journalists or their sources a special magistrate who holds secret Together, the laws have led to what Liberal national security. credentials, and an unknown number have over stories that were more politically hearings to decide whether or not to issue Democrat senator David Leyonhjelm had their passports confiscated. At least Since then, Egypt has tweaked its laws embarrassing than they were damaging the warrant. With no such protection for a describes as the greatest clampdown on In April this year, an Istanbul court 150 media organisations have been forced to define terrorism so loosely that to national security. All together Obama journalist’s sources though, it is hard to see freedom of speech in decades.65 “Bit by bit issued an arrest warrant for independent to close and had their assets seized. anything deemed to be a threat to put the Espionage Act to work eight times why any of the agencies would bother when they have been chipping away at freedoms. journalist Can Dündar on espionage national stability could be considered – more often than all his predecessors they can dig around the data of anybody The cumulative effect had been the most charges, and asked Interpol to issue a Egypt is the world’s third most prolific as an act of terror. Even “preventing or combined – with investigators often who they think might have been in contact significant erosion of rights in recent warrant of its own. The charges stem from a jailer of journalists with at least 20 impeding the public authorities in the trawling through digital communications with a reporter. memory.” report Dündar published in the newspaper currently in prison, again almost all on performance of their work”.”61 to find the evidence they needed. Cumhuriyet while he was editor-in-chief charges related to terrorism and national Section 35P of the ASIO Act makes This is not to suggest that Australia is about alleged smuggling of weapons into security. In January 2014, my two Al Between January and May last year, “Until President Obama came into office, unauthorised disclosure of any “special about to become Turkey any time soon, but Syria by Turkey. Jazeera colleagues and I were charged Egyptian courts sentenced at least 15 no one thought talking or emailing was intelligence operation” (SIO) punishable the forces eroding press freedom are largely with aiding a terrorist organisation, being journalists to prison terms ranging from not protected by the First Amendment,” by up to 10 years in prison. Even the SIO the same. Dündar is a recipient of CPJ’s International members of a terrorist organisation, three months to five years on charges Goodale wrote. “President Obama wants designation is top secret, so any journalist Press Freedom Award and he has lived in and broadcasting false news with intent related solely to their writing, including to criminalize the reporting of national interested in a botched operation – surely It is worth reminding Australians that one exile in Europe since 2016, when a Turkish to undermine national security (I was defamation and the publication of security information. This will stop reporters a legitimate area of inquiry – could of the reasons we live in one of the most court sentenced him to seven years for also charged with financing a terrorist what the authorities found to be “false from asking for information that might be unwittingly find themselves behind bars for stable, prosperous and peaceful nations on “revealing state secrets”. Dündar’s case is organisation). We were convicted and information”.62 classified. Leaks will stop and so will the free a very long time. the planet, is a system of democracy that one of the most prominent in Turkey, but it sentenced to seven years hard labour, flow of information to the public.” includes a robust and largely unfettered is by no means extraordinary. though the sentences were later reduced Most recently, parliament in Malaysia The Counter‑Terrorism Legislation press fiercely capable of holding the to three years when we appealed and were passed a law against “fake news” Note that phrase: “criminalize the Amendment (Foreign Fighters) Act 2014 powerful to account. According to the CPJ’s figures, Turkey once again convicted in a retrial. punishable with fines of almost reporting of national security information”. criminalises travel to any region that is now the world’s most prolific jailer of $170,000 and up to six years in prison.63 In the innocent days before 9/11, it would the minister declares to be a zone where journalists, with 73 behind bars by the end The closest the prosecution came to It is up to the government to define have been hard to imagine anybody terrorists are active. In their defence, Professor Peter Greste is the UNESCO of 2017 (Freedom House counts slightly providing “evidence” was alleging that what counts as “fake”. applying it to the United States, much less journalists can argue that travel to, say, chair in journalism and communication more, with 76, while one Turkey-based because Al Jazeera interviewed members a seasoned lawyer. But 9/11 has radically Afghanistan, was for “legitimate purpose”, - school of communication and arts at organisation puts the number at 145). of the Muslim Brotherhood, and we As disturbing as the stories of Turkey, Egypt changed the landscape, and where the US but the burden to prove legitimacy rests the University of Queensland Most are there on charges related to the were employees of Al Jazeera, we were and Malaysia are, they are consistent with leads, Australia tends to follow. with the reporter; not the prosecutor. CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 22 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 23

The US National Security Agency headquarters, Fort Meade, Maryland WELCOME TO THE MACHINE EVEN BEFORE THE ESPIONAGE BILL WAS INTRODUCED TO PARLIAMENT, AUSTRALIA WAS ALREADY WELL DOWN THE PATH OF LEGISLATING PRISON TERMS FOR JOURNALISTS REPORTING IN THE PUBLIC INTEREST, AS ANDREW FOWLER EXPLAINS IN THIS EDITED EXTRACT FROM HIS BOOK SHOOTING THE MESSENGER: CRIMINALISING JOURNALISM

ust half an hour’s drive north-east achieved what governments promised. Without the US guarantee of freedom of of Washington DC, the well-paved Instead they have often been more speech and publication, or the European Jdual highway passes a forest before effectively used to track down Court of Human Rights rulings supporting a final line of trees gives way to more whistleblowers and criminalise the work the right to protect the identity of sources, open ground. On the left, looking like of journalists. The notion that the central Australia is marooned mid-way in a legal a sprawling shopping complex which role of journalism was to disclose secrets version of a choppy Atlantic Ocean. The has outgrown its site, the National which powerful interests wanted kept from country might have produced some of the Security Agency (NSA) appears. This is the public was being upended, particularly most outspoken proponents of libertarian the headquarters of the most powerful in the important area of national security. free speech in Rupert Murdoch and Julian intelligence-gathering organisation the Assange but Australian laws restricting world has ever seen. New laws being shaped, both in the US expression are some of the most draconian and elsewhere, made illegal that which in the world. It is the centre of a network that straddles had been normal journalistic practice and the Earth. From the spy base at Pine made legal the activities of intelligence In September 2012 the then attorney- Gap with its array of antennas pointing agencies which had previously been general, Labor’s Nicola Roxon, proposed skywards against the sunset red of the outlawed. Against sometimes hysterical the introduction of a data retention Australian outback, to Menwith Hill on the claims from US politicians, other nations law. In 2015, the Telecommunications green undulating farmland of Yorkshire fell in line. (interception and Access) Amendment in the north of England, the NSA is (Data Retention Act (2015) passed connected to satellites circling overhead, In Australia sweeping laws demanded through the Australian Parliament. and undersea surveillance systems tapping that the metadata of all phone calls Telecommunications companies would be into transcontinental telephone cables. should be held for two years by the forced to store metadata on all Australians telecommunications companies, on for two years. Though Australia’s Nearly every phone call, email or behalf of intelligence and police agencies, Parliamentary system is based on that of electronically created signal will at some exposing journalists and their sources to the UK, for Australian journalists there spy agency access to any journalist’s The all-encompassing nature of the “receiving” any “sketch, plan, photograph, time end up here, or in one of the data being tracked by the very organisations it were none of the protections afforded by metadata. law placed journalists in an impossible model, cipher, note, document article storage bases of the NSA’s sister agencies is their responsibility to hold to account. the European Court of Human Rights. legal position. If they reported, even or information” covered by the Official in Australia, New Zealand, Canada or the Six months earlier, in response to inadvertently, on an SIO, they could be Secrets section of the Crimes Act (1914). UK. Known as the Five Eyes partnership, The new laws give virtually no protection In an attempt to assuage journalists’ fears the (Edward) Snowden disclosures, charged. If they tried to check with ASIO, the intelligence-sharing agreement has its to journalists – and in particular their that their sources were vulnerable to Parliament had passed a law that they would also potentially run into Coupled with the Data Retention Act roots in the days of the British Empire. sources. One draconian piece of legislation exposure, the government offered what gave ASIO even more power, as the trouble: even discussing an SIO would and the ASIO Amendment Act it would made it an offence punishable by up to it suggested was a compromise: to get government responded to the Snowden itself be illegal. There was no defence make reporting on significant matters If you use a telephone or the internet, 10 years prison in certain circumstances access to journalists’ data, security and leaks. The National Security Legislation that the public had a right to know about of national security, that much more nowhere on the planet is safe from the for a journalist to reveal what the police agencies would need a Journalist Amendment Act (2014) introduced a three- botched ASIO operations. ASIO would difficult for journalists, and make prying ears and eyes of the NSA and national Australian Security Intelligence Information Warrant, signed off by a judge. year prison sentence for intelligence only be answerable to the Inspector whistleblowers that much more wary of its sister agencies. Every mobile phone Organisation (ASIO) determined was a But it would be no normal court: any officers who removed or copied classified General of Intelligence, a government- speaking out. tower, every email, every payment at the Special Intelligence Operation (SIO). Since hearing would be held in secret and the material without authorisation. If the appointed official. supermarket, every digital transaction ASIO would neither confirm nor deny journalist would be kept unaware of the information was given to a third party, Australia, the nation that had passed adds to the profile the NSA is capable of an SIO, it was impossible to know if a request to look through their metadata. for example a journalist, the officer could After a strong campaign by newspapers more counter-terrorism legislation than building on every person on Earth. Huge journalist was about to break the law until They would be represented, without face 10 years in prison. And to prevent and the electronic media, MEAA and the any other place on earth, now had specific databases scattered across the world log the report was broadcast or published. their knowledge, in the secret court by an any outside scrutiny of the intelligence Walkley Foundation, the government law targeting journalists, a knee-jerk the digital footsteps and fingerprints of advocate appointed by the government. In organisation the government rushed eventually amended the law, introducing reaction to the Snowden disclosures us all. All this is happening as newspapers the event that the journalist became aware through a law which made it extremely a defence of “prior publication”. That which had done so much to make the across the political spectrum have become they were under investigation, there was difficult for ASIO’s actions to be meant that if another publication had world aware of the dangers of mass Throughout the Western liberal weakened by plummeting circulation another twist to the law. Public disclosure investigated by journalists. already reported the event, the journalist surveillance. democracies new laws have given figures, their owners either unwilling or of the existence of a warrant would be might be in the clear. In other words the governments greater powers to eavesdrop unable to stand up to governments. punishable by two years’ imprisonment. Section 35P of the Act created an offence best legal defence was to get beaten to Andrew Fowler is an award-winning on the population and the journalists which makes it a crime, with a possible the story. investigative journalist and a former whose job it is to keep them informed. Journalists who see their role as telling In the event the application of a sentence of five years, to disclose reporter with the ABC’s Foreign Those laws, which gave governments truth to power are under extreme Journalists Information Warrant came information about a “special intelligence In early 2017 the Australian government Correspondent and its premier such sweeping surveillance powers, were pressure as to protect themselves as they from ASIO, there would be no judge or operation” – an SIO. If the disclosure began examining the possibility of investigative TV documentary introduced ostensibly to track terrorists attempt to carry out their historically public advocate potentially standing endangered anyone’s health or safety – or including the cover of SIOs to the program Four Corners. and reduce the number of attacks. But designated role of holding executive in the way, representing the journalist. the effective conduct of an operation – Australian Federal Police. Already a detailed analysis suggests the so-called authority to account. The signature of the Attorney-General then the maximum sentence increased journalist could be imprisoned for anti-terror surveillance laws have not would be sufficient to give the domestic from five to 10 years. between six months and seven years for CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 24 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 25

Australian Federal Police Commissioner Andrew Colvin. Image courtesy Andrew Ellinghausen, Fairfax Photos front a court or tribunal; it can apply for a • The AFP relied heavily on manual checks ENCRYPTION Journalist Information Warrant directly to and corporate knowledge as it did not NATIONAL SECURITY the attorney-general. have in place strong system controls On July 14, 2017 MEAA issued a statement for preventing applications that did not expressing alarm at a government push to POWERS A journalist can never challenge a Journalist meet relevant thresholds from being force tech companies to break encrypted Information Warrant. Everything about progressed; and communications.71 Journalist Information Warrants is secret. • Although guidance documents were JOURNALIST Even if someone should discover a warrant updated prior to the commencement “The announcement seems to show scant has been issued, reporting its existence will of the Journalist Information Warrant understanding or consideration of how this INFORMATION result in a two years jail. provisions, they were not effective as a might be achieved, or any concern for the control to prevent this breach. potential consequences,” MEAA said. WARRANTS In short, journalists and their media employers will never know if a warrant has The failure to destroy the accessed data MEAA said it was particularly concerned been sought for their telecommunications came down to a lack of technical know- that on past experience the government On April 28, 2017 MEAA issued a data and will never know if a warrant has how. The Ombudsman suggested that in and its agencies have little regard statement regarding the revelation been granted or refused or how many of future cases, the “AFP, when destroying for press freedom and there is every an Australian Federal Police officer their news stories and their confidential information, seek assistance from its likelihood that the powers being sought has been able to access a journalist’s sources’ identities have been compromised. technical officers to ensure that the by the government over encrypted telecommunications data without information is destroyed from all locations communications will be misused – either being granted the necessary Subsequent to the revelation of the access on its systems.” to identify a whistleblower or pursue a Journalists Information Warrant.66 to a journalist’s metadata without a warrant, journalist for a story the government does an audit by the Commonwealth Ombudsman The ombudsman’s report states that: “At the not like. MEAA has campaigned strongly found that Australian Federal Police did time of drafting this report, 190 authorised against the ability of government not destroy all copies of phone records it officers were delegated to issue metadata MEAA chief executive Paul Murphy said: agencies to access journalists’ and government agencies to identify and never know how much of their data has obtained unlawfully, without a warrant, for authorisations. Fifty-four of them could “For more than 15 years now, we have media companies’ telecommunications pursue a journalist’s sources (without been accessed nor how many sources and the purpose of identifying the journalist’s issue metadata authorisations under a seen government introducing anti-terror data in order to hunt down and identify the journalist’s knowledge); including news stories have been compromised. source.68 Journalist Information Warrant.” laws that erode press freedom, persecute confidential sources. whistleblowers who seek to expose instances whistleblowers and attack journalists for of fraud, dishonesty, corruption and threats The new scheme, for the most part, is The ombudsman contradicted AFP The ombudsman recommended: “The simply doing their job. MEAA chief executive Paul Murphy said: to public health and safety. warrantless (the exception are the Journalist commissioner Andrew Colvin’s statement AFP should consider the relevant training “Despite all of the requirements put in place Information Warrants). Access is currently in April 2017 that confirmed a breach had and experience of officers who may “Laws that are meant to protect the before a Journalist Information Warrant can On February 28, 2017 the director-general of limited to 21 government agencies but this occurred within the professional standards temporarily act in higher positions which community and go after terrorists are be granted, the system has failed. ASIO told a Senate Estimates hearing that can be expanded. This is what they can get unit and that the accessed metadata had have been delegated to issue metadata being used to muzzle the media, cloak the ASIO had been granted “a small number” of access to: been destroyed. An audit of the AFP’s authorisations. These officers are not subject government in secrecy, hunt down and “This is an attack on press freedom. It Journalist Information Warrants. • Your account details. records carried out by the ombudsman on to mandatory metadata training and would identify journalists’ sources, and imprison demonstrates that there is very little MEAA and media organisations have • Phone: the phone number of the call May 5, 2017 “identified that not all copies of have infrequently, if at all, issued metadata journalists for up to 10 years for reporting understanding of the press freedom repeatedly warned politicians of the threat or SMS; the time and date of those records containing the unlawfully accessed authorisations.” matters in the public interest,” he said. FOREWORD 69 concerns that we have been raising with to press freedom in these laws. At the last communications; the duration of the data had been destroyed by the AFP”. politicians and law enforcement officials for minute, parliament created a so-called calls; your location, and the device and/or The lack of proper capability, oversight, “As recently as April, the Government PAUL MURPHY, CEO, MEAA several years now,” he said. “safeguard” – the Journalist Information mobile tower used to send or receive the Of particular concern is this statement from management and understanding of the failed to bring the Australian Federal Warrant scheme and, as part of the scheme, call or SMS. the ombudsman’s report: “With regards to requirements of the law, outlined in the Police to heel when it revealed that “The use of journalist’s metadata to a new office was created: the Public • Internet: the time, date, sender and how the breach was identified, based on our Ombudsman’s report, is worrying. After it had illegally accessed a journalist’s identify confidential sources is an attempt Interest Advocate. However, the scheme is recipient of your emails; the device used; understanding of the events leading up to the all, the legislation is designed for a single telecommunications data without a to go after whistleblowers and others who no safeguard at all; it is merely cosmetic the duration of your connection; your voluntary disclosure to our Office, it appears purpose: the enable the government to go warrant. Even the subsequent investigation reveal government stuff ups. This latest dressing that demonstrates a failure to IP address; possibly the destination that an external agency initially prompted after whistleblowers after their stories have by the Commonwealth Ombudsman into example shows that an over-zealous and understand or deal with the press freedom IP address (if your carrier retains that the AFP to review the relevant investigation, been told by the media. Its aim is to bypass how that breach occurred is a secret under cavalier approach to individual’s metadata threat contained in the legislation: information); your upload and download resulting in consideration of the relevant the ethical obligations of journalists by the Telecommunications (Interception and is undermining the right to privacy and volumes; your location. legislative requirements.”70 For the AFP trawling through their telecommunications Access) Act,” he said. the right of journalists to work with their The Journalist Information Warrant scheme to need an external agency to remind it to data and that of their media employer, to confidential sources. was introduced without consultation. Journalist Information Warrants will be comply with the law is disturbing. enable a government agency to hunt down, “There is real concern that government • It operates entirely in secret with the required if a government agency wants to persecute and prosecute a confidential agencies could once again misuse their On Thursday April 13, 2017 all threat of a two-year jail term for reporting access a journalist’s telecommunications The ombudsman found that there were four source after a news story has been published powers to go after whistleblowers, to telecommunications companies were the existence of a Journalist Information data or their employer’s telecommunications main contributing factors for the breach: or broadcast. go after journalism. The government required to retain the metadata for two Warrant. data for the express purpose of identifying a • At the time of the breach, there was must take immediate steps to protect years. The regime is a particular concern • Public Interest Advocates will be journalist’s source. insufficient awareness surrounding The use of legislation in this attack on press human rights and press freedom before for journalists who are ethically obliged to appointed by the Prime Minister. Journalist Information Warrant freedom, legislation that was passed by the it indulges in granting agencies any more protect the identity of confidential sources. Advocates will not even represent the The 21 government agencies include the requirements within the Professional Parliament with bipartisan support, should anti-terror powers. There will be appalling Clause 3 of MEAA’s Journalist Code of Ethics specific interests of journalists and anti-corruption bodies that already have Standards Unit (PRS); be deeply troubling for any advocates of consequences if extreme powers such as requires confidences to be respected in all media groups who must protect the star-chamber powers, as well as Border • Within PRS, a number of officers did freedom of expression and press freedom. those being sought by the Prime Minister circumstances.67 confidentiality of sources. Force, the Australian Securities and not appear to fully appreciate their and Attorney-General are misused to • There is no reporting or monitoring of Investments Commission and the Australian responsibilities when exercising The bungling application of the law by the persecute journalists and their sources. The new regime secretly circumvents how the warrants will operate. Crime Commission, and state and federal metadata powers; national police force so soon after being After all, that’s what happened just three these ethical obligations and allows 21 • Journalists and media organisations will law police forces. ASIO doesn’t have to enacted is more worrying still. months ago,” Murphy said. CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 26 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 27

such as the Office of the Inspector-General Special Rapporteur on the promotion Commonwealth officers. This is particularly of Intelligence and Security (IGIS), were and protection of the right to freedom of when it has not been demonstrated that there blind-sided by the Espionage Bill, unaware opinion and expression has concluded that are “problems” that need to be “fixed”. The of what it contained until it was tabled in national security considerations should result is that fair scrutiny and public interest the Senate. Indeed, the IGIS wasn’t even be ‘limited in application to situations in reporting is increasingly difficult and there is able to discuss the Bill with the Attorney- which the interest of the whole nation a real risk that journalists could go to jail for General’s Department until January 30 is at stake, which would thereby exclude doing their jobs. ESPIONAGE 2018, the day before the IGIS appeared restrictions in the sole interest of a before a Senate hearing into the Bill. Government, regime, or power group.’ We recommend that a general public interest/ AND FOREIGN Additionally, States should “demonstrate news reporting defence be available for all On February 15, three United Nations’ the risk that specific expression poses to of the relevant provisions in both the secrecy INFLUENCE special rapporteurs for human rights issued a definite interest in national security or and espionage elements of the Bill. This is the a joint communique condemning the public order, that the measure chosen only way to ensure public interest reporting Espionage Bill legislation72. David Kaye, the complies with necessity and proportionality can continue and Australians are informed of BILLS UN special rapporteur on the promotion and is the least restrictive means to protect what is going on in their country. and protection of the right to freedom the interest, and that any restriction is of opinion and expression, Fionnuala subject to independent oversight.”73 The Espionage Bill establishes a range of D. Ní Aoláin, UN special rapporteur on new secrecy provisions via new definitions the promotion and protection of human In summary, the communique stated: (s90.1(1)) and a new Part 5.6 to be inserted rights while countering terrorism, and “We are particularly concerned that these into the Criminal Code Act. These new Michel Forst, UN special rapporteur on restrictions will disproportionately chill offences replace current crimes under the situation of human rights defender the work of media outlets and journalists, section 70 (disclosure of information by noted that the Bill was “inconsistent with particularly those focused on reporting or Commonwealth officers) and section 79 Australia’s obligations under article 19 investigating government affairs. The lack (official secrets) of the Crimes Act 1914. of the International Covenant on Civil and of clarity concerning these restrictions, Political Rights and related human rights coupled with the extreme penalties, may The submission noted that the new Malcolm Turnbull looks to the press gallery on December 7 standards.” Australia ratified the Covenant also create an environment that unduly offences apply to all persons, not just 2017 - the day he introduced the in 1980. deters and penalizes whistleblowers and Commonwealth officers. This is a Espionage Bill legislation. Image the reporting of government wrongdoing significant broadening of the application courtesy Nick Moir, Fairfax Photos In particular, the UN said, “We are gravely more generally. of the law beyond that encompassed concerned that the Bill would impose in the legislation that the Bill replaces. draconian criminal penalties on expression MEAA together with Joint Media Anyone who “communicates” or “deals” n FIRST PHASE Even receipt of unsolicited information foreign sourced news, information and and access to information that is central Organisations that form Australia’s with certain information provided by a At 6.04pm on December 7, 2017, two hours would put a person in automatic breach. entertainment. It would also capture to public debate and accountability in a Right to Know industry lobbying group, Commonwealth officer will be in breach of before the Australian Parliament rose for Indeed, if the journalist did receive such industry bodies making representations democratic society. For example, several quickly responded with a submission to the legislation. its two-month Christmas-New Year break, information, how could they to know the to government on behalf of any company offences under the Bill would not only the Parliamentary Joint Committee on Prime Minister Malcolm Turnbull – a material was in breach of the law without in their membership base (and it could be penalise disclosures of government Intelligence and Security inquiry into the The submission stated that “deals” with former journalist – introduced a Bill that first possessing, communicating, and just one member of their membership) that information in the public interest, but also National Security Legislation Amendment information was unnecessarily broad – provided jail terms of up to 20 years for dealing with it? was a company with a foreign principal expose journalists, activists, and academics (Espionage and Foreign Interference) Bill particularly when applied to the news journalists reporting in the public interest. operating in Australia. that merely receive such information to 2017.74 The organisations and MEAA also media – adding that “deals” would include So broad was the Bill that a discussion of criminal liability. appeared at the inquiry’s public hearings. people who receive information, possess The legislation, the National Security unsighted material might place a journalist The sweep of this Foreign Influence Bill The submission said: information, communicate information Legislation Amendment (Espionage and in breach even without being in possession captures documentary channels on pay “Such extensive criminal prohibitions, We note at the outset of this submission or who make a record of it. It would Foreign Interference) Bill 2017, applied the of a document. television, online newspaper websites coupled with the threat of lengthy that national security amendment laws capture people who merely have certain penalty to anyone who “communicates” and commercial radio stations. It requires custodial sentences and the lack of continue to undermine the ability of the information in their possession – including and “deals” with certain information Under the proposed amendments the them to undertake registration, continuous meaningful defences, are likely to have news media to report in the public interest anyone in a media outlet involved in news provided by a Commonwealth officer. penalties were increased from the range disclosure of activities that could influence a disproportionate chilling effect on the and keep Australians informed about their reporting and informing the Australian of six months to seven years jail to a government policy and/or politics, lodging work of journalists, whistleblowers, and environment and communities. This Bill is the public of matters of public interest. For The new penalty for “deals” with new maximum of 15 years jail for the of any documentation in a central register, activists seeking to hold the government latest national security Bill that does this and example, a journalist receiving unsolicited information would include anyone who communicating offence, and a maximum and subject them to criminal sanctions for accountable to the public. We urge the we again bring these important issues to the information would be in automatic breach, receives, possesses, communicates or of five years for the dealing offence. But noncompliance. (During January through Committee to reconsider the Bill in line attention of the Committee. with the Commonwealth noting that records the information. In short, the certain security classifications carry an to March the Joint Media Organisations with the human rights standards…” “receives… would include a person being Espionage Bill punishes people for additional five year penalty for each including MEAA made several submissions The proposed legislation criminalises all given a classified document by another handling information as well as disclosing offence. and appearances at inquiry public hearings The UN communique went on to note steps of news reporting, from gathering and person”. information in a news story. It means that regarding the Foreign Influence Bill – the that: “Although article 19(3) [of the researching of information to publication/ journalists, as well editorial, production That wasn’t the only Bill introduced submissions can be found here: https:// Covenant] recognises ‘national security’ communication, and applies criminal risk to The submission asked that, if the journalist and office support staff and even a that would harm the media. In another www.meaa.org/category/mediaroom/ as a legitimate aim, the [UN] Human journalists, other editorial staff and support received such information, how could media outlet’s legal advisers would be at breathtaking example of poor drafting, submissions/) Rights Council has stressed ‘the need staff that knows of the information that the journalist determine whether the significant risk of jail time as a result of the Foreign Influence Transparency Scheme to ensure that invocation of national is now an offence to ‘deal’ with, hold and material is in breach without possessing, merely having certain information in their Bill 2017 would have an adverse effect The dual assault of both bills led to security, including counter-terrorism, is communicate. communicating, and otherwise dealing possession in the course of legitimate on the day-to-day operations of foreign- condemnation from a variety of civil society not used unjustifiably or arbitrarily to with it? A mere discussion of unsighted reporting matters in the public interest. owned media with Australian operations groups including law societies and human restrict the right to freedom of opinion The Bill is a significant step beyond material might place journalists in breach, as well as media outlets that reproduce rights bodies. Even Government agencies and expression.’ In this regard, the the existing legislation that applies to notwithstanding that they may then ask CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 28 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 29

others about the information – with or the identity of a confidential source – the Joint Media Organisations prepared without being in possession of a document. may be used to identify sources in these a supplementary submission to the circumstances.” committee: The Bill also expands on the forms of information far more broadly than previous A prior publication defence only served to We make this submission following media legislation, and acts as a barrier to public “intimidate news organisations from being reports that the Attorney-General has interest reporting. Existing law applies to the first to publish by placing all of the instructed his department to amend disclosure by a Commonwealth official of burdens on them – leading to a substantial Schedule 2 of the Bill to: a “fact or document” that is subject to a chilling of public interest journalism,” the • Improve the clarity of offences that pre-existing duty of confidence. But the submission said. apply to Commonwealth officers, most new Bill applies to “information of any particularly by narrowing the definition kind, whether true or false and whether in The submission recommended that “it of ‘conduct that would cause harm to a material form or not, and includes (a) an should be a defence that the information Australia’s interests’ and the definition of opinion; and (b) a report of a conversation”. has already been communicated or ‘inherently harmful information’ – which made available to the public – regardless are the two definitions that would give rise The Bill applies strict liability for of the status of the Commonwealth’s to a Commonwealth officers’ liability; communicating or dealing with “security authorisation of that information. We • Separate out the offence that would apply classified information”. The submission note that the penalty is 15 years jail. to non-Commonwealth officers including argues this means the prosecution does Once again we note that the risk is that a journalists and ensure that the offence to not have to prove the information was journalist could go to jail for doing their apply to non-Commonwealth officers is “inherently harmful”. job is very real, and as a result of reporting appropriately narrowed in scope in the public interest.” • to only apply to the most serious and Section 122.2 of the Bill relates to conduct dangerous conduct; and “causing harm to Australia’s interest”. The In response to these concerns, on • Strengthening the defence for journalists submission responded that these matters February 2, 2018, the new Attorney- by removing any requirement for The new Federal Attorney General Christian Porter poses for a portrait at the Parliamentary include interfering with any process General Christian Porter was reportedly journalists to demonstrate that their Offices on January 30, 2018 in Sydney. concerning breaking of a Commonwealth seeking advice on issuing a direction reporting was ‘fair and accurate’, ensuring Image courtesy Dominic Lorrimer, Fairfax Photos law that has a civil penalty, interfering or to the Commonwealth Director of that the defence is available where a prejudicing the performance of functions Public prosecutions that prosecutions journalist reasonably believes that their of the AFP, and harming or prejudicing of journalists cannot proceed without conduct was in the public interest, and relations between the Commonwealth and his sign-off, replicating a safeguard clarifying that the defence is available The expansions of these aspects of the ASIO decreasing the prison sentences for them to A blanket defence or exemption was still a State or territory. “Overall, the ability his predecessor as attorney-general, for editorial and support staff as well as Act, in aggregate, and in addition to matters 10 years and three years (reduced from 15 needed because the concept of the “public of the media to report on what may be George Brandis, had put in place for journalists themselves. raised previously in this submission, are of years and five years). interest” was vague, the classification classified information and/or national offences relating to reporting on special major concern. These amendments increase of documents as “secret” or “top secret” security concerns will be more difficult intelligence operations where section 35P These amendments, in combination with the risk to all that media organisations Porter said: “There has been no intention was an administrative decision that – particularly under the catch-all phrase of the ASIO Act would lead to jail terms of the extension of the definition of computer encompass, including all employees, to unnecessarily restrict appropriate could trigger a criminal prosecution, of ‘harm to Australia’s interests’,” the up to 10 years for journalists.75 to computer network, and the ability to add, information and intellectual property which freedoms of the media. Where drafting and attempts to mount and prove a submission said, adding that even reporting delete, alter, and now copy data that is not in turn curtails freedom of speech. improvements are identified that strike defence might reveal information about on international trade or Goods and Shadow attorney general, Mark Dreyfus, relevant to the security matter (albeit for the a better balance, the government will journalists’ sources. Services Tax distribution could be viewed said: “Porter’s suggestion of a veto power purpose of accessing data that is relevant to We urge the Parliament to consider this promote those changes.” 77 as adverse under the broad scope of the Bill. for himself smacks of political interference the security matter and the target) amplifies impact of the proposed amendments before n THIRD PHASE in the work of the independent DPP and the risks to the fundamental building proceeding with the Bill. MEAA chief executive Paul Murphy, In response to the attorney-general’s The Bill offered some defences but these does not give us any satisfaction that the blocks of journalism including undermining responded that while the defence was a amendments, on March 14, 2018 the were limited to information that is already press freedoms will be protected.” confidentiality of sources and therefore news The supplementary submission noted “significant improvement” on the earlier Joint Media Organisations including public and information covered under gathering. Porter’s comments, saying that they version, which required journalists to MEAA made a second supplementary the Public Interest Disclosure Act. The By February 7, Porter was reported as were “an encouraging sign that the demonstrate their work was “fair and submission to the Parliamentary Joint submission found that the defence of saying: “There is not, nor has there ever The supplementary submission also noted Government is willing to examine the Bill accurate” it still was “not clear” the defence Committee on Intelligence and Security news reporting was narrow and subjective, been, any plan… by the government to that the Bill amended sections of the ASIO – and the others in the package – more of reasonable belief was available for regarding the National Security Legislation particularly because of its definitions of see journalists going to jail simply for Act to: closely. However at this time we make no both dealing with and communication of Amendment (Espionage and Foreign “public interest” and “fair and accurate receiving documents and that would • Authorise a class of persons able to execute comments on the proposed amendments. information, meaning journalists could Interference) Bill 2017 and also appeared reporting” as well as narrow and dated not occur under this Bill as currently warrants rather than listing individuals Given our initial submission on the Bill still be exposed to 10 years’ prison for at the inquiry’s public hearings. definitions of “journalist” and “news drafted.”76 He refused to offer a blanket (section 24); it is clear that there are serious flaws in publication of stories relating to national medium”. exemption or defence for journalists and • Clarify that search warrants, computer the drafting and the Bill significantly security. This latest submission stated: media organisations. access warrants and surveillance device overreaches. We note that other submitters Notwithstanding the amendments it The Bill also contained an evidentiary warrants authorise have raised serious concerns with the Bill. MEAA and other media organisations remains the case that journalists and their burden on identifying sources where He also stated that it was “inevitable” that • access to third party premises to execute a continued to call for a proper exemption. support staff continue to risk jail time journalists would have to explain how they the Bill would change. warrant (sections 25, 25A and new section On March 5, 2018 Porter subsequently “The overriding concern we still have is for simply doing their jobs. This is why came to possess and deal with and hold the 26B); and introduced amendments to the espionage that media organisations have asked for we believe that the way in which to deal information. “It is quite possible the powers n SECOND PHASE • Authorise the use of reasonable force at Bill that would give journalists a defence general media exemption and it’s certainly with this appropriately is to provide an under the TIA Act [Telecommunications On February 12, 2018, in light of Attorney- any time during the execution of a warrant, for the offence of dealing with protected not here in these changes,” he said. “The exemption for public interest reporting. (Interception and Access) Act] to access the General Christian Porter’s refusal to not just on entry (sections 25, 25A, 26A, information where they “reasonably fact that there is a requirement to mount metadata of journalists to identify a source grant a blanket exemption of defence 26B and 27J). believe” it is in the public interest to do so. a defence for legitimate reporting is a very The right to free speech, a free media and or a whistle-blower – in contravention for journalists while acknowledging He also created separate offences for non- serious concern.” access to information are fundamental to of the journalist’s obligation to protect that the Bill would need to be changed, commonwealth officers, such as journalists, Australia’s modern democratic society, a CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 30 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 31

society that prides itself on openness, public by a second-hand shop where NEW BILL WOULD responsibility and accountability. used government furniture is sold off cheaply.79 The submission stated: MAKE AUSTRALIA However, unlike some comparable modern democracies, Australia has no laws We note here Linda Mottram’s recent WORST IN THE enshrining these rights. In the United interview with the attorney-general on FREE WORLD FOR States of America the right to freedom of ABC Radio National’s PM program about communication and freedom of the press the amendments and the Bill. A question CRIMINALISING are enshrined in the First Amendment was posed to the attorney-general about JOURNALISM of the Constitution and enacted by state the recent filing cabinet situation and the and federal laws. In the United Kingdom, penalties that would apply under the Bill. BY JOHAN LIDBERG they are protected under section 12 of the Human Rights Act 1998. The attorney-general responded by saying ustralia is a world leader in passing the that he didn’t think you can make blanket most amendments to existing and new Therefore we do not resile from our long- assumptions about penalties, there are Aanti-terror and security laws in the liberal held recommendation for exemptions for a range of defences and it would depend democratic world. Since September 11, 2001 it The Senate Select Committee into the public interest reporting in response to on the circumstances and on the contents has passed 54 laws. Future of Public Interest Journalism legislation that criminalises journalists of the document, so he couldn’t say if the received evidence that the fragmented nature of current legal provisions for going about their jobs. The lack of such person (the purchaser of the filing cabinet The latest suggested addition is the Turnbull concerning whistleblowers and a protection – and the ever-increasing or the journalist) would definitely face government’s crackdown on foreign journalistic sources can lead to a great offences that criminalise journalists for this or that charge, and noted in closing interference. The bill has been heavily deal of uncertainty doing their jobs – stops the light being that every case is different and it’s a very criticised by Australian Lawyers for Human shone on issues that the Australian public complicated and individualised situation. Rights, Human Rights Watch, and major media has a right to know.78 organisations for being too heavy-handed and the ABC staff would be in breach of the compare the Five Eyes with several BRICS don’t have the information on which to We cannot emphasise enough that far-reaching in the limits it would place on provisions suggested in the bill. (Brazil, Russia, India, China and South base this decision? The submission went on to recommend this is why an exemption for public freedom of expression and several other civil Africa) countries and the situation in the that “persons engaged in public interest interest reporting is the most liberties. Furthermore, this makes an already European Union. There is no easy answer to this question. reporting be exempted from offences appropriate outcome for Australia’s heavy-handed whistleblower regime from Political philosopher Giorgio Agamben in the Bill, including to ‘deal’ with democracy when laws – intentionally The government’s own intelligence watchdog, an international perspective even more Our main conclusions are that the current takes our reasoning one step further when information. If this is not accepted, or unintentionally – criminalise the Inspector-General of Intelligence and draconian. It is sure to lose Australia fear-driven security environment has made he argues that the liberal democratic then an alternative is that the offence… journalists (and associated support Security, argues the bill is so widely worded several places on the Press Freedom Index it much harder for investigative journalists world has been in a “state of exception” should only apply to a limited range personnel). [MEAA emphasis added] that its own staff could break the law for if implemented as suggested. to hold governments and security agencies since September 11. This has granted of activities rather than the full list handling documents they need to access to do to account. This is partly due to anti-terror powers to security agencies that are of activities currently listed under Linda Mottram’s response illustrated the their job. The Bill is an overreach in many respects. and security laws making it harder for creeping increasingly closer to those of the ‘deal’… This change would ensure that point: “Which in itself has got to have But one of the worst aspects, from a whistleblowers to act. totalitarian regimes in Europe in the 1930s. more passive activities, such as the a chilling effect, doesn’t it? Anybody A case in point is whether the ABC’s transparency and accountability point of mere receipt and internal copying of who comes across documents is going publication of confidential and secret cabinet view, is that it seeks to extend the draconian Add to this the truly awesome powers of Agamben traces various states of exception information or an article would not to immediately say whoa, hang on a documents would be in breach of the proposed Section 70 of the Commonwealth Crimes Act. mass surveillance making it increasingly all the way back to Roman times. The pattern trigger a relevant offence provision minute, it’s complicated as the Minister bill. Two filing cabinets full of thousands of difficult for investigative journalists to is similar through history: governments under the Act.” said and there’s possibly 10 years’ jail at confidential cabinet documents were given to Section 70 makes it a crime, punishable grant anonymity to sources that require it point to an “other” – often a hard-to-define the end of this.”80 the ABC by a source who, astonishingly, had by a maximum of two years in prison, for for their own safety, and you end up with a enemy – as a reason for increased powers to The submission also recommended bought them for small change at an op-shop in public servants to communicate or supply very complex journalist-source situation. the security apparatus. They are convinced changes to the proposed amendment to On March 16 2018, at the final public Canberra. information to anyone outside government they are doing the right thing. the news media defence but reiterated hearing into the Espionage Bill in without permission. The ABC’s publication Another important factor in Australia and that a proper exemption, rather than a Melbourne, MEAA presented a petition The ABC made an assessment and chose of the cabinet files clearly illustrates that the UK is that all national security agencies The problem is that if we don’t roll back defence, was what was needed. to the Parliamentary Joint Committee to publish a very limited number of the media organisations with ethical and are exempt from Freedom of Information the strengthened security laws in times of on Intelligence and Security containing documents it deemed in the public interest. thorough editorial polices are perfectly laws. This makes it virtually impossible to lower threat, we start from a high level next The submission highlighted the almost 9000 signatures of people The ABC has so far clearly acted responsibly, capable of assessing what to publish. independently acquire information from time we enter a “state of exception”. This in recent news story regarding the ABC opposing proposed new national and no documents that could harm Australia’s the security branch of government. turn can lead to a never-ending war on real reporting on what it called “the Cabinet security legislation. The petition was national security were in the first publication. The bigger picture is that the current Bill or perceived threats where our cherished files” where a wide range of Cabinet addressed to Prime Minister Turnbull is part of a pattern that started after the The balance between national security democratic civil liberties become part of documents were found in filing cabinets and Attorney-General Christian Porter. Some of the published documents are terrorist attacks in the US on September 11, and transparency is complex. As citizens, the collateral damage. that were for sold to a member of the embarrassing for both the current and former 2001. we want to feel safe and know what is Coalition and Labor governments, but that being done to keep us safe. In our book, we If we allow the “state of exception” to should not stop publication – rather, the In our forthcoming book, In The Name have labelled this the “trust us” dilemma, become permanent, we risk allowing the opposite. of Security – Secrecy, Surveillance and meaning governments argue they can’t terrorists to win. Journalism, my colleagues and I assess how disclose what they are doing security-wise, n WHAT THE BILL WOULD MEAN the anti-terror laws and mass surveillance lest the “bad guys” find out. Johan Lidberg is associate professor, THE BILL ESTABLISHES NEW SECRECY The Foreign Interference Bill, in its current form, technologies in the Five Eyes countries (the school of media, film and journalism, PROVISIONS, NEW DEFINITIONS AND suggests it should be criminal for anyone to intelligence alliance comprising Australia, That leaves us needing to trust the Monash University. This February 1, “receive” and “handle” certain national security Canada, New Zealand, the United Kingdom government’s security actions and policies. 2018 article was sourced from The NEW OFFENCES. information. It would seem that by just receiving and the United States) has impacted on in- But the problem is, how can we as citizens Conversation81 the filing cabinets and assessing what to publish, depth public interest journalism. We also decide if we trust the government if we CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 32 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 33

The Senate Standing Committee on Economics Legislation reported the findings of its inquiry into the Whistleblower Protections Bill on March 23 2018.193 It recommended that the WHISTLEBLOWER definition of “journalist” be reviewed. submission to the Parliamentary Joint SHIELD LAWS opposed to information which the public PROTECTION Committee on Intelligence and Security may simply find interesting (for example, regarding the National Security Legislation On November 23, 2017 the Northern because it is salacious)”. During the year there were some advances Amendment (Espionage and Foreign Territory’s Legislative Assembly referred in whistleblower protections however, as Interference) Bill 2017. the Evidence (National Uniform Legislation) MEAA also noted that a court or tribunal seen with the expansion of severe penalties Amendment (Journalist Privilege) Bill to the would be required to consider: in the latest tranche of national security law “[T]here are various definitions of Economic Policy Scrutiny Committee for (i)  “ Any likely adverse effect of requiring amendments, there was also a concerted ‘journalist’ in Commonwealth legislation inquiry.84 The Bill was a welcome move that disclosure on the informant (and effort by Government to pursue, prosecute including s.126J of the Evidence Act 1995: would bring the territory into line with others); and and punish whistleblowers who seek to ‘Journalist’ means a person who is engaged most jurisdictions in Australia. (ii) “The public interest in the make public examples of illegal activity, and active in the publication of news and who communication of facts and opinion to fraud, harassment, dishonesty and threats to may be given information by an informant in MEAA made a submission to the the public and the ability of journalists public health and safety. the expectation that the information may be Committee’s inquiry.85 In the submission to access sources of information.” published in a news medium; and MEAA stated that it welcomed that the Bill The report of the Senate Select Committee ‘News medium’ means any medium for the recognises a fundamental ethical obligation The Bill also provided safeguards against into the Future of Public Interest dissemination to the public or a section of the for journalists to protect confidential purported misuse of the privilege in cases Journalism82 said the committee had public of news and observations on news.” sources. Clause 3 of the MEAA Journalist where, inter alia, the reportage contained received evidence that the fragmented Code of Ethics states: unfair and untrue information and/or nature of current legal provisions In its submission, MEAA recommended whether the journalist took reasonable concerning whistleblowers and journalistic legislation use a consistent definition Aim to attribute information to its source. steps to verify the information and use it in sources, both across sectors and of “journalist” and “news medium”, and Where a source seeks anonymity, do not agree a manner that minimised personal harm. jurisdictions, can lead to a great deal of MEAA supports the definitions in the without first considering the source’s motives “This is, in essence, a good faith provision,” uncertainty for some journalists pursuing Evidence Act as being more suitable to be and any alternative attributable source. MEAA said. stories. “The committee considers that the submission to the Senate Standing MEAA said that “in providing protection used in the Whistleblower Protections Where confidences are accepted, respect them Commonwealth should look to harmonising Committee on Economics Legislation to disclosures to a journalist working in Bill. MEAA also said that it supported in all circumstances. In MEAA’s view, the Bill dealt fairly with the these laws, in part to make it easier for inquiry into the Treasury Laws Amendment professional capacity, the amendments make the removal of the requirement that an definition of “journalist” by not adopting journalists to pursue legitimate stories in (Enhancing Whistleblower Protections) Bill clear that disclosure to any ‘journalistic’ or electronic service would have to operate At its core, the Bill provides that a journalist the definition used in other jurisdictions, the public interest.” 2017 which was introduced to the Senate on ‘media’ enterprise is not sufficient. This is on a commercial basis. And MEAA may claim journalist privilege in order to such as New South Wales, where a December 7, 2017.83 intended to ensure that public disclosures expected that the Bill will be redrafted to protect a confidential source. This privilege journalist is “a person engaged in the The committee noted that the Parliamentary on social media or through the provision of ensure that protections are available to can be waived if a judicial officer is satisfied profession or occupation of journalism”. Joint Committee on Corporations and MEAA stated that while the Bill was material to self-defined journalists are not whistleblowers and journalists with the that it is in the public interest to do so. MEAA believe the formulation used in the Financial Services (JCCFS) inquiry into a promising advance in ensuring that covered by the protection. certain aim of ensuring that whistleblower territory’s Bill is more practical and better whistleblower protections had reported in whistleblowers have an avenue to raise their concerns are brought to light without MEAA noted that the Bill’s Explanatory accords with modern day practices. September 2017. The Senate committee concerns, “the Bill offers an anachronistic “The Memorandum seems to be overly negative repercussions for either party. Note states that “public interest refers to noted that “although the JCCFS report view of how journalists and the media concerned with applying a rigidly archaic information which could assist and improve MEAA summed up its submission by did not consider the effects of current operate and this must be remedied before definition of journalist that is not only out- society and the wellbeing if its members, as saying: “Notwithstanding our concerns provisions on journalists in great depth, the Bill is enacted”. of-step with current practice but which also this committee notes and endorses aims to muzzle legitimate news reporting that committee’s recommendation that MEAA was concerned that the Bill defines a by journalists of whistleblower concerns. The Northern Territory Legislative Assembly Australia’s whistleblower framework journalist as: Stifling information flow should not be should be harmonised across sectors and a person who is working in a professional the aim of legislation intended to afford jurisdictions”. capacity as a journalist for any of the following: protections for whistleblowers. Indeed, the (a) a newspaper or magazine; opposite is true – if a whistleblower has The Senate committee also noted (b) a radio or television broadcasting service; made contact with a journalist then that that the 2009 report by the House of (c) an electronic service (including a service contact and the information that has been Representatives Standing Committee provided through the internet) that: exchanged should be afforded the same on Legal and Constitutional Affairs had (i) is operated on a commercial basis; and comprehensive protections regardless of examined the need for a comprehensive (ii) is similar to a newspaper, magazine or the individual platform or the individual scheme for whistleblower protection in radio or television broadcast. journalist selected by the whistleblower,” the Commonwealth public sector. At the MEAA said. time, the House committee had suggested “The Bill’s definition above appears to extending whistleblower protections to exclude electronic services that are not MEAA explained that the nature of the the private sector was a matter that should operated on a commercial basis. Many digital disruption that has transformed be considered in the future. The Senate independent freelance journalists self- the media industry is that an increasing committee finally recommended that “the publish legitimate news stories on the number of journalists are operating in this Commonwealth look at ways to expand internet without a commercial transaction fashion and to apply the requirement that whistleblower and shield law protections, taking place,” MEAA said. a web site must operate commercially fails and to harmonise those laws between the to acknowledge the reality of the way the Commonwealth and state and territory “The Bill’s Explanatory Memorandum media has changed. jurisdictions, noting the work in this area may go some way to explaining why this already underway”. antiquated definition has been utilised in MEAA called on the committee to note On February 16, 2018 MEAA made a the Bill.” that it had also addressed this issue in its CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 34 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 35

MEAA said the current situation for public interest journalism is an incredibly dangerous one

BORDERLESS DIGITAL PUBLISHING ALLOWS FOR “JURISDICTION SHOPPING”

over a court or tribunal’s ability to opposition, most notably from then accountability to the public. They will displace the privilege, MEAA strongly Attorney-General John Rau, to any require a source to be identified in court supports the passage of this Bill into attempts to introduce a shield law. only if the public interest in revealing law. The Australian legal system remains such information outweighs the potential something of a patchwork when it comes Indeed, on October 30, 2014 the South detriment to the source. This is an to journalist shield laws.” Australian government and government- important transparency measure. aligned independents voted down the MEAA commended the Northern Evidence (Protections for Journalists) “Our shield laws will not limit protections Territory Government for advancing this Amendment Bill 2014. In defeating the to only those in professional media. Bill and doing so in a way that provides Bill, Rau had stated: “The Bill before They will be opened to all contractors sound protections for journalists’ the parliament leans too far towards or freelancers working to promote professional (and essential) use of protecting the interests of journalists and debate in the public interest. Our media confidential sources. discounts the legitimate public interest need our support to comply with their in the administration of justice which ethical guidelines to protect sources MEAA also urge the Northern Territory requires that cases be tried by courts of information which is in the public Government to promote its efforts in all on the relevant admissible evidence.”86 interest to have revealed. A Marshall relevant national forums, not least the His comments failed to appreciate Liberal Government will continue to Standing Committee of Attorneys General that those vulnerable to prosecution advance the interests of transparency, (SCAG). “By doing so, your Government included whistleblowers seeking to openness and informed debate through can assist in securing nation-wide expose corruption, fraud, dishonesty, shield laws and other initiatives.” THE INDUSTRY protection for journalists and improve harassment, and threats to public health the content of existing laws, which, and safety. Within two and a half weeks of the in our opinion, too readily permit the election, the new Marshall Government displacement of a journalist’s privilege.” There was a change of government at had issued an exposure draft of a the election on March 17, 2018. As part shield law Bill. MEAA and other media The Northern Territory’s move to of his party’s election platform, then organisations are examining the exposure PUBLIC INTEREST country. That has been underlined by the around the edges of current media enact a journalist shield law leaves Opposition Leader Steven Marshall draft. recent announcement from Fairfax Media ownership rules is going to do absolutely Queensland and South Australia as the committed his Government, if elected, JOURNALISM of yet more savage cuts. The prospect of nothing to achieve that outcome. Today only jurisdictions refusing to implement would introduce a shield law by However, even if the every jurisdiction in a foreign private equity takeover of our we would like to set out some of our a journalist shield law. promising: “We will provide journalists Australia does, finally, possess a shield On World Press Freedom Day, May 3, 2017 oldest, and one of our most respected, observations of the effects of disruption and their sources with the protection of law, MEAA notes that there are wide Fairfax Media announced it would cut one media organisations should fill anyone in the industry over the last six years and This situation has a chilling effect on effective shield laws.”87 discrepancies and variances in each in four journalists from its metropolitan who is concerned about the future of the impacts on journalists on their ability journalism because borderless digital jurisdiction’s shield law. newsrooms in Sydney, Melbourne and public interest journalism in this country to do their job, and offer some preliminary publishing allows for “jurisdiction The policy document stated: “If elected Canberra - a loss of 125 journalists. Fairfax with dread. views to you about what the problem is shopping” – effectively creating a in 2018, a Marshall Liberal Government MEAA again calls for harmonisation of journalists across the country decided to and the types of things the committee situation where a subpoena demanding will ensure shield laws give effective the laws to account for the realities of take industrial action including voting to “MEAA believes the important starting might want to look at in the course of its a journalist can be compelled by a court protection to journalists and their borderless digital publishing by creating a go on strike for seven days. point in this process is one that has deliberations.” to reveal their confidential sources even sources. Quite simply, people who uniform national shield law regime, along been absent from all recent efforts by though the journalist and their media alert the media to important public similar lines to the uniform national On May 10, as a result of the Fairfax governments of various persuasions to MEAA explained that through its outlet do not operate or reside in that issues embody the core values of an defamation law regime. announcement, a Senate select committee pursue media reform. That is the essential monitoring of redundancy rounds at state. The journalist would then face not open society… If journalists are unable was established to inquire and report on public policy goal that we should be media organisations since 2011, at least only the expense of defending themselves to guarantee privacy to their sources, Until that happens, journalists remain the future of public interest journalism.88 looking at here, which, surely, is the public 2500 journalist positions have disappeared in that state, away from their home the public will not reap the benefits of vulnerable. interest of having a strong and diverse at newspapers and broadcasters across the base, but also would face the full wrath openness, and the public debate will be The committee received 75 submissions media landscape in Australia to provide country – probably more. That followed of a court if they are found guilty of restricted. The public and journalists including one from MEAA89, and MEAA a wide range of reporting, analysis and on from about 700 job losses that can be contempt for simply having maintained are being left behind in South Australia, also participated in the committee’s opinion. That is the starting point.” attributed to the impact of the 2008 global their ethical obligation to not reveal the without consistent protection to both extensive public hearings which took place financial crisis. identity of their confidential sources. journalists and their sources. in May, July, August and November in MEAA went on to say that there should “A Marshall Government’s shield laws Sydney, Melbourne and Canberra. be a debate about what government can “It is impossible to guess what that The change of government in South will provide protection to journalistic and should do to support public interest number would be in total if you also took Australia has also led to movement sources by enabling suppression of At the inquiry’s first public hearing90 journalism. “What are the appropriate into account people who have simply left on shield laws in that state. Under the their identities. Our shield laws will MEAA said: “We really are at a crossroads regulatory settings to achieve that? And, the industry and not been replaced. That previous Government there was staunch encourage an open discussion with and for public interest journalism in this frankly, as we have said before, tinkering would make the figure even higher. CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 36 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 37

“The losses initially came in great waves, bulk of the digital disruption had plagued media organisations, profit and non- MEAA recommended that the committee • Consideration of direct and indirect MEAA was encouraged that committee commencing with subeditors. Subeditors traditional media businesses that have profit – the plurality of news sources may must look introduce government support government subsidies to media, with inquiry endorsed many of the were the first part of the profession that had to wrestle with the transition to the increase across all platforms. While there for the media, particularly in the area of safeguards to protect editorial integrity recommendations made to it by MEAA. was really heavily targeted in redundancy new technology and the fragmentation are questions about how such a system tax relief and tax incentives. MEAA said from being compromised. Among the committee’s recommendations rounds, but since then we virtually have and erosion of income streams, might work, we believe it is important that the system of indirect and direct • Creation of a media diversity fund. recommended and supported by MEAA seen annual redundancy rounds in major digital technology had also opened up for this committee to look at this as an subsidies that operate in different parts • Tax deductibility for news subscriptions. are: media organisations across the country, opportunities for new players to emerge. option and as a possible solution to the of the world was something that the • Industry assistance to retrain and • Ensuring adequate funding for the “ MEAA said. “And it is important to While this further damaged traditional circumstances that we find ourselves committee should look at, although MEAA re-educate journalists, along with ABC and SBS to ensure they meet their remember that, as a result of the budget media houses, the new media businesses in… Companies that financially benefit also noted that that the issue of direct innovation grants and other forms of charter obligations – particularly in cuts to our public broadcaster, we have also offered a wider choice for consumers. by reproducing but not creating news government subsidies for private media assistance to maintain editorial staffing rural and regional services and fact- seen significant redundancies taking place content should contribute funding also presented a major ethical concern. levels. checking capacity; there as well.” MEAA said that in Australia, established towards maintaining and developing • Funding for counselling and assistance • Providing surety for funding of the news brands like the Guardian, Huffington journalistic content and endeavours. That MEAA’s accompanying submission to media workers as they transition out community broadcasting sector MEAA went on to explain that the scale Post and Daily Mail have local digital is a basic principle that we think would be to the inquiry was written with many of secure work. including for training and education and of redundancies has an enormous impact editions produced by Australian journalists, important to apply. contributions from MEAA journalists and • Extension of charitable or tax-exempt the rollout of digital; on the ability of media organisations to and they have recently been joined by members of the public, and was endorsed status to public interest journalism. • The development and implementation continue doing their job. Departing staff The New York Times. Others providing a “Regulators at national and international by MEAA’s elected National Media • Encourage the establishment of of a framework for tax deductibility are not being replaced. Remaining staff welcome boost were BuzzFeed and new levels should act with urgency to establish Section committee. In the submission foundations or not-for-profit media status for not-for-profit news media; have to work harder. Previously core local entrants like The New Daily and payment mechanisms, whether by a levy MEAA noted: “The digital disruption that outlets. • Treasury to model providing tax activities are being abandoned. “Everyone the academic website The Conversation. or other means, from intermediaries has transformed the media has shaken • Further investigation about how to deductibility for news media just appears to be trying to keep their heads However, MEAA noted that: “These add of scale, such as Google and Facebook, everything we knew about our industry. extend workplace protections and subscriptions; above water and, as we have seen in recent important elements to the local media which justly compensate authors and There is no certainty. The audience collective bargaining to freelance • An Australian Law Reform Commission weeks, they are not always succeeding at landscape and have contributed, in some publishers for their creative works. Such is fragmented. That fragmentation journalists who work as independent audit of laws that adversely affect the that.” cases, extraordinarily valuable additional funds should ensure that a minimum has savaged revenue streams whether contractors with poorer pay and less work of journalists; depth to particular areas of reporting, but of one per cent of advertising revenues that revenue comes from advertising, job security than permanent staff • A Council of Australian Governments’ There has been a concomitant increase none of them have the resources to replace of organisations of scale are devoted to subscriptions, circulation or eyeballs. journalists. review of Australia’s defamation law in editorial outsourcing to third parties. the journalism at scale that we are losing.” fund journalistic and related content, as • Defamation law reform. regime; “Previous employees are now working a condition of a company’s access to each “Distribution and production of media has • Expansion of current whistleblower and freelance as independent contractors on MEAA also stated that indicators market,” MEAA said. been separated by the internet with social In summary, MEAA said: “There is no journalist shield law provisions. lower pay rates, with no job security and suggest that the audience is growing media becoming a useful distribution magic bullet to restoring the media to fewer benefits than before. As redundancies with subscriber numbers and readership MEAA concluded its remarks by stated tool, albeit one that effectively robs the position it was in just six years ago. MEAA chief executive Paul Murphy have increased, the marketplace of these growing. While the use of print media was that the current situation for public revenue. Social media uses news media’s Digital disruption has and will continue said: “This is a clear vindication of what freelance workers has become more declining; digital, web and app readership interest journalism is an incredibly editorial content to lure advertising from to reshape the industry. There is no going MEAA has been saying for many years: crowded and, as costs have been cut, has been growing and boosting the local dangerous one. “In the absence of action, news media to news ‘aggregators’. Media back. government can and should be doing the editorial budgets available to pay audience. However, the fragmentation of we face the risk of our media market, organisations public and private have more to support the media industry for outsourcing have been sliced into advertising revenue continued with many already one of the most concentrated largely abandoned investing in their “But it is true that, unless something which is being hurt by the impact of smaller and smaller pieces, meaning ad dollars going from traditional and digital in the world, becoming even more so. product and have resorted to seemingly urgent and comprehensive is done digital technology and draconian laws that freelancers are competing among news media to digital non-news platforms It is a dangerous fallacy to think that never ending cost-cutting. At the same the media will continue to collapse, that muzzle legitimate reporting in themselves for increasingly declining rates such Google, Facebook, Yahoo, Microsoft the internet in and of itself will provide time that our industry and its established redundancies will continue to reduce the public interest. The Committee has of pay.” and Twitter. diversity. Yes, people have access to more business models have been under attack, the number of journalist ‘boots on clearly acknowledged the vital role a sources of news than ever, but any time our profession is too,” MEAA said. the ground’, audiences will become healthy media industry plays in a strong MEAA said that in an increasing number “We have to be gravely concerned at the you care to look at the Nielsen digital increasingly dissatisfied with media democracy. The public broadcasters have of cases the arrangements we are seeing impact that aggregators and content ratings you will find that nearly all of the The submission examined the current outlets and more susceptible to ‘fake a crucial role to play – they must be given being put in place amount are little more vehicles like Google and Facebook top 10 positions, the top 10 most visited state of public interest journalism in news’, and the public will become less the funding to ensure they can fulfil their than sham contracting. “These people are are having on our media landscape in news sites, are owned by established Australia and provides many examples of informed.” duty under their charters. Commercial in a very exposed position. As so-called Australia,” MEAA told the committee. local media brands. Allowing greater government support for public interest media is being adversely affected by independent contractors they do not have “These non-paying entities strip concentration of ownership through journalism being utilised in other “Access to information is a human right. the loss of revenue arising from digital the benefit under our legal framework of advertising and other revenue from mergers will only lead to more job cuts countries including Canada, Ireland, the The media plays an essential role as the disruption. being able to collectively bargain. They are regulated media entities that provide and fewer voices in our media. US, France and others. fourth estate in a healthy, functioning heavily exposed in an increasingly crowded important public interest editorial and democracy. Government has for decades “In the past six years, thousands of marketplace, and it is a major issue for us entertainment Australian content for “The endless cost cutting we are MEAA made a series of recommendations played a role in the structure and journalist jobs have been lost. The result as a union and a professional association,” Australian audiences. To date, they experiencing is having a real impact on to the committee including: regulation of broadcast media. It is a is that public interest journalism has been MEAA told the committee. have made little effort to acknowledge quality at the worst possible time. At a • Restore and increase funding to public major advertiser. It is time for government dangerously harmed. This report brings the funding problem and even less to time when we are facing the challenge broadcasting. to foster, encourage, promote and support Australia in to line with best practice MEAA added that the spate of redundancies contribute to funding the content from of malicious parties seeking to distribute • Tax incentives and other forms of the media so that it can continue to overseas, and demonstrates that there have meant that newsrooms have shrunk. which they benefit enormously.” fake news, public trust in our media support for rural and regional news function for all Australians.” is much that can be done to ensure the Specialisation has been replaced by becomes more important than ever. outlets. media can continue its crucial role as the multiskilling. Research, investigation, MEAA was one of several contributors to And that public trust is only going to be • More rigorous taxation of news The Senate select committee, which was fourth estate and that journalists can depth and accuracy are being lost. “In short, the inquiry proposing a levy of some sort challenged further by the endless rounds aggregators. beset by numerous personnel changes due get on with keeping their communities the media industry is creaking at the seams be applied to these organisations. “With of cost cutting and the resulting impact • Consideration of a levy to raise funds in part to citizenship issues, released its informed,” Murphy said.92 trying to fulfil its important public role as the right spread of revenues from a levy on quality that people see,” MEAA told the from “digital disruptors” to be invested final report on February 5, 2018.91 part of a healthy, functioning democracy.” on these aggregators – perhaps through committee. in public interest journalism. MEAA acknowledged that the while the contestable bidding by existing and new CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 38 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 39

MEAA said Google and Facebook have become a channel for news media content through which Australian media companies have seen their business models rendered obsolete WITHOUT REGULATORY EFFORT AND MAJOR OPERATIONAL CHANGES, THE MEDIA SECTOR WILL BE FURTHER DIMINISHED

business models rendered obsolete. “The of this mechanised ‘tailoring’ of content to also presented evidence from Europe and fundamental cause of this obsolescence has a user can lead to what has been labelled elsewhere concerning arms’ length direct been the free-fall in advertising revenues a ‘hivelike’ way of living. In a democracy, and indirect government assistance to media once relied upon by media companies the risks of confining sources of news companies via contestable funding rounds. to produce quality journalism across the information should be clear.” We are however wary of how Government breadth of public policy, business, justice, funding could itself be manipulated in favour international affairs, sport and matters of MEAA noted that a key manifestation of of some, but not all media outlets. general interest.” errant algorithms is the critical inability of algorithms to discern fake content from MEAA’s strong preference is for Australian The submission noted that the media verified news information. “Whether this media companies to be provided with a merit- sector had lost about 3000 journalist is due to inadequate human attention and/ based, free market. This can only be restored positions since the growth of digital or a misplaced reliance on technology, if the major digital platforms’ distortive platforms escalated about 10 years ago.” it is damaging. It creates confusion and and unfair dissemination of news content is Unlike the well-documented slide in fractures public trust with all news media, curtailed or commercially appropriate terms the Australian manufacturing sector, not just the disseminators,” MEAA said. are agreed between publisher/broadcaster consumers cannot continue to purchase and digital platform(s). equivalent (or substitute) products to those The submission also noted that the displaced by the decline of the Australian platforms were making efforts to address We do not say that advertising revenues media sector. There will be a loss of local the concerns of news media companies. should be redirected from digital news from regional Australia as it will not MEAA said that it remains hopeful platforms to news media companies; be carried by an international publisher.” that the changes embraced by Google this would constitute punishment of the and Facebook will see growth in digital digital platforms for providing what in DIGITAL PLATFORMS MEAA said that many of the job losses subscriptions, but we do not believe that many instances are superior advertising at Australian media companies came they will restore the abundant losses mechanism and audience reach. through redundancies, which appeals to suffered by media organisations in the last more senior journalists who have worked decade. Subscription fees cannot make MEAA’s view is that the fruits of these n December 4, 2017, arising from innovation and technological change, in mutually satisfactory commercial with an employer for many years. This up for the flight of advertising dollars to platforms’ carriage of news media content the Senate Select Committee’s on competition in media and advertising negotiations; loss of positions and knowledge has had digital platforms. they do not produce should be paid for on an inquiry into the Future of markets; and the impact of information • Inserting a mandatory ‘public interest’ quantitative and qualitative consequences, access-per-user or levy basis. OPublic Interest Journalism, the asymmetry between platform service test into section 50 of the Competition MEAA said. Newspaper content, whether Digital platforms plainly benefit from their Australian Competition and Consumer providers, advertisers and consumers and and Consumer Act – mergers and the number of pages and volume of carriage of news content. It is disingenuous to Finally, MEAA said that without regulatory Commission was directed to conduct an the effect on competition in media and acquisitions; journalistic content contained therein, is assert that the ability of users to access media effort and major operational changes by inquiry into digital platforms. The inquiry advertising markets.”94 • Fast-tracking the Productivity significantly down on five and 10 years ago content on their platforms does not aid their digital platforms, the media sector will be is examining “the effect that digital Commission’s recommendations for a – a product of the inability of proprietors viability and revenue streams. further diminished beyond the already very search engines, social media platforms In response, MEAA’s submission to the new Comprehensive Right for consumers to cover all areas of consumer interest. low levels of media diversity and quality and other digital content aggregation inquiry95 made several recommendations: to control their data and creation of a new The fragmentation of the sector has also The viability of Australian media companies content. platforms have on competition in media MEAA believes that effective standards Data Sharing and Release Act; pushed an increasing number of journalists is unknown – even the best performing and advertising services markets. In should be established for digital platforms, • That the Government consider increasing into freelance work, which is far less secure companies can only eek out modest The MEAA submission concluded by particular, the inquiry will look at the especially those of scale. We support the maximum penalties for ‘mass’ privacy/ and where earnings troughs can be more profits after the now serial write-downs saying: “The gravest risk of doing nothing impact of digital platforms on the supply following seven measures: data breaches; and common than peaks. in masthead value, job shedding and the is that those who invest in producing of news and journalistic content and the • That digital platforms of scale be • That consumers be provided with plain systematic culling of expensive public public interest and other journalism will implications of this for media content classified as media companies for language information about the extent of “MEAA believes that rampant revenue interest journalistic efforts. not have the means to continue covering creators, advertisers and consumers.”93 regulatory purposes; algorithm use and advised of safeguards. displacement from media companies the news that impacts public information • In the absence of Australian publishers to digital providers should lead to an The void is now growing larger and cannot and discourse. The displacement of Specifically, the inquiry’s terms of and content creators being reasonably MEAA said that from the perspective acknowledgement that digital platforms be filled by (poorly or non-remunerated) conventional media organisations (other reference noted that it would examine compensated for use of media content, of MEAA members, digital platforms are modern news companies – discussed freelance journalists and small online than public broadcasters, which face how “platform service providers are an access-per-user fee or percentage enable the spread of their work to a wider further on in this submission; it follows media entities with lower overheads, but a funding challenges of their own) will lead exercising market power in commercial of revenue charge be levied on digital audience and greater communication that they… must pay for the news and restricted breadth of stories. For journalism to a dearth of content to upload and draw dealings with the creators of journalistic platforms of scale, such funding to be between journalist and media consumer. current affairs content.” to be sustainable and serve a public purpose, consumers in. content and advertisers; the impact retained for a contestable Public Interest Journalists are increasingly required to funding is necessary. of platform service providers on the Journalism Fund; upload content onto social media sites MEAA also warned that the use of “Perversely, the last people standing will level of choice and quality of news and • That an effective “good faith” requirement to capture clicks and create an online algorithms by these digital platforms MEAA has previously called (via the be those who aided the demise of pre- journalistic content to consumers; the be included in collective bargaining presence. But Google and Facebook is compromising media diversity. Public Interest Journalism Inquiry) for existing media companies. What quality impact of platform service providers authorisations under section 88 of the have also become a channel for news “Compartmentalising media consumers the Australian Government to provide news content will be left for them to on media and advertising markets; the Competition and Consumer Act to enable media content through which Australian instead of valuing their potential breadth of concessional tax treatments to Australian disseminate?” MEAA said. impact of longer-term trends, including Australian media companies to engage media companies have seen their interests is inherently harmful. The result media companies and subscribers. We have CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 40 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 41

Striking Fairfax journalists rally outside The Age building in Melbourne after Fairfax announced on UNESCO World Press Freedom Day 2017 that it would cut 1-in-4 editorial positions from its metro newsrooms in Sydney, Melbourne and Canberra a government purge of the media that Dooley, acting general secretary, of the MEAA’s Media section director Katelin includes the arrest and detention of National Union of Journalists – UK and McInerney said: “The job redundancies more than 100 journalists and the Ireland, said: “We learned with great that will result will only serve to strip closure of dozens of media outlets concern of the decision of Fairfax Media vital editorial talent from the company’s throwing hundreds of journalists out to enforce sweeping redundancies at mastheads, harm the very products that of work, has offered its support and The Sydney Morning Herald, The Age and News Corp’s audiences value and end solidarity to Fairfax journalists. Australian Financial Review. The axing of up being self-defeating because of the The global journalists association, the 125 jobs will have a devastating impact damage they do. These are mastheads International Federation of Journalists, on the workers and their families. The that pride themselves on being which represents more than 600,000 proposed cuts will severely damage the newspapers of the people and a voice for journalists in 139 countries, strongly titles at a time when editorial investment the communities they serve – these cuts criticised Fairfax management’s decision is crucial to retaining audiences. On behalf serve no-one. to cut 125 of its journalists to save of NUJ members in the UK and Ireland we money. “The IFJ stands in solidarity extend solidarity to your members and “News Corp readers and the communities with the Fairfax staff,” the Brussels- congratulate you on the swift response to that these journalists serve deserve based organisation said in a statement. the announcement of unilateral action on better. Once again it is front line editorial The IFJ general secretary, Anthony the part of the company. We wish you will staff in already stretched newsrooms – Bellanger, said: “On the day that we well in your strike action and assure you of the very people audiences rely on to tell stand together and celebrate the brave our strong support. their stories – who are bearing the brunt work of journalists across the world, we of these short-sighted cuts for short- are now standing in solidarity with our Additional statements of support came term shareholder gains,” McInerney said. Fairfax colleagues and their continued from journalists’ unions in Spain, “Time and time again we have seen that fight for their jobs. We call on Fairfax Belgium, Ukraine, Turkey, Germany, cuts to front line media staff ultimately management to take immediate steps Canada, Tunisia, Switzerland, Russia, do not deliver the kinds of savings for to remedy the situation, without losing Nepal, Thailand, Palestine, Vanuatu, media companies that get them out of the more jobs.” Afghanistan, Sri Lanka, Indonesia, woods,” she said. Somalia, France, Italy, India, Malaysia, Messages of support from around the Pakistan, Ecuador and Morocco.98 “Cutting the very staff who tell the world came flooding in. Sharan Burrow, stories of our society’s marginalised general secretary of the International In April 2017 News Corp announced and vulnerable – particularly those Trade Union Confederation in Brussels, redundancies at its metropolitan and photojournalists who create the images said: “We were shocked to hear of the community titles around the country. we, as audiences, rely on to cut to unilateral and deeply damaging plan of Photographic staff and production roles the heart of an issue in a powerful, Fairfax management to cut 125 full-time were targeted in the cuts. In some cities, compelling and instantaneous way – equivalent jobs, at a time when the world up to two-thirds of the photographic has proved an ultimately futile stop- is crying out for quality journalism to staff would be cut, although exact gap measure for news companies,” combat the lies, distortions and fake numbers have not yet been confirmed McInerney said. news which are driving xenophobic, by the company at all sites. Staff were nationalistic and extremely dangerous told redundant photographers would be MEAA called on News Corp not to political narratives. On behalf of the able to freelance back for News Corp, abandon the long-term investment it has REDUNDANCIES International Trade Union Confederation, and provide content as freelancers via made in photographic journalism, and representing 181 million trade union photographic contractors Getty and AAP. to work with their staff and the union members worldwide, I wish to join to build a robust and sustainable news with the International Federation of Management also flagged significant business for News Corp, which invests in he spate of redundancies affecting journalists set out the journalists’ case for because of, not despite, their association Journalists in expressing our total changes to work practices with earlier the people telling the stories. the media industry continued the company to act smarter by investing with the tremendous journalism at solidarity with your action. We are deadlines, greater copy sharing across with Fairfax Media announcing in quality journalism rather than such great titles as The Age, Australian witnessing a closing of democratic space cities and mastheads, and journalists In May 2017, the ABC announced Ton UNESCO World Press Freedom undermining the company’s products by Financial Review and The Sydney Morning around the world, and the exercise of free taking up more responsibility for the axing of its Fact Check unit Day, May 3, 2017 that it would cut one in making yet more radical cost-savings cuts Herald. speech and good journalism are vital to production elements and proofing (subsequently recreated as a joint four editorial staff from its metropolitan by forcing redundancies on editorial staff. “It thus makes sense to reinvest a democracy itself. The decision of Fairfax their own work, which has journalists venture with RMIT University) and newsrooms – a loss of 125 jobs out of 500. portion of that success in our news- management is wrong and misguided, concerned about already stretched news 14 positions to be cut from the Perth, The letter said the Fairfax board of rooms, not necessarily out of a sense of and the international trade union gathering resources and maintaining the Brisbane, Sydney, and Melbourne The announcement sparked industrial directors’ strategy of “cutting the way civic duty (though that counts too) but movement stands with you every step of editorial standards of their mastheads. newsrooms has been made more action by Fairfax journalists that included to profitability” was flawed, adding that because it makes sound business sense. the way in your campaign to reverse it.” painful by yet another deplorable use of a seven-day strike, in turn generating Fairfax businesses flourish because of Fairfax will only prosper in the 21st Tim Dawson, president, and Seamus targeted redundancies. enormous community support for the the company’s journalism and that, century if it nourishes the journalism journalists and triggering a Senate because of this, Fairfax should invest in that delivers its valuable audiences and select committee to be established to its journalism because it makes sound sustains its storied mastheads.” inquire into the future of public interest business sense. The letter cites the WE ARE SHOCKED TO HEAR OF THE PLAN TO journalism. plan to float the Domain business as an Around the world, journalists example. expressed their support for the Fairfax CUT 125 JOBS AT A TIME WHEN THE WORLD IS Fairfax Media journalists also wrote96 to journalists.97 In a particularly poignant the company’s board and shareholders “We believe it’s demonstrably the case gesture, the courageous Journalists’ CRYING OUT FOR QUALITY JOURNALISM about management’s plan. The that these businesses will succeed largely Union of Turkey, which is confronting CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 42 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 43

NOBODY WINS WHEN EDITORIAL IS UNDER-APPRECIATED IN THIS WAY

The cuts were the result of the ABC’s McInerney said workers shouldn’t McInerney said: “These decisions enhanced newsgathering budget being have to pay the price of poor are a cruel blow to loyal and hard- cut by $18.6 million over the next decisions. “The media monitoring working staff in the last few weeks three years. service is relied on by politicians, before Christmas. The subsequent corporations and those in power,” massive reduction in resources “As we had warned, these cuts – on she said. also means that for those staff that top of the more than $250 million remain behind, their already massive which was cut in 2014 and 2015 – will “The continued drive of media workload will most likely increase to place news services at the ABC under companies like Isentia to pursue unrealistic levels. extreme pressure,” said MEAA CEO profits at the cost of local jobs is Paul Murphy. “The timing for this short-sighted and emblematic of “The move to switch from employed decision could not be worse – in the poor business practice. Culling local staff to freelance contributors lead-up to the federal election, when people who have essential knowledge suggests Fairfax will once again use strong journalism to independently and expertise only serves to harm a labour hire firm to farm out work to scrutinise politicians’ claims and the business further, eroding growth freelancers in exchange for poor word counter-claims is needed.” It is opportunities and causing immense rates while the firm earns a fee from disturbing that even after these cuts, damage to the brand. Workers Fairfax,” McInerney said. the director of ABC News Gaven shouldn’t have to pay the price of poor GENDER Morris has warned of more challenges decisions that have been made since “Nobody wins when editorial is under- to continue delivering original and the company listed on the ASX.”99 appreciated in this way. Communities investigative journalism and local and lose a vital public service and the regional newsgathering.” In early November 2017 dozens of right to be informed of the news suburban newspaper journalists in and information in their local area. n September 22, 2017 MEAA the treatment of the cadet by the Seven In June 2017 Seven West’s division Sydney and Melbourne were told they And journalists, both employed and issued a statement saying that Network, but she continues to hear from Pacific Magazines announced would find themselves jobless just freelance, are left to try to work harder it was concerned and deeply women working in the industry that 11 redundancies and flagged the weeks before Christmas in yet another while often earning less. Australia’s Ofrustrated that media companies sexual harassment is still part of the outsourcing of sub-editing to round of cost-cutting by the two two largest media companies are continue to treat sexual harassment, territory and companies are doing little to Pagemasters. MEAA’s McInerney said: largest publishers.100 failing to invest for the future and and those who are brave enough to raise support women when they come forward. “Cutting in-house expertise is a short- are simply falling back on failed cost- it, with contempt. sighted move that seeks to cut costs MEAA condemned the cutting formulas that simply do not women respondents have experienced “We all expect that these kinds of while ultimately undermining quality. announcements by Fairfax Media and work,” McInerney said. MEAA said it regularly deals with media intimidation, abuse or sexual harassment attitudes and reactions from media Sub-editing is a highly developed News Corporation of the axing of up employers who run roughshod over in the workplace. One in three women companies to allegations of sexual skill and removing that capability to 31 jobs as yet another example of MEAA assisted staff and worked employees’ rights when dealing with (34 per cent) did not feel confident to harassment have been left in the bad from within your publishing business the companies’ failed cost-cutting with members to ensure that the complaints to protect the company’s speak up about discrimination. The old days of the 1980s and ’90s. But inevitably comes at a cost. MEAA calls without any serious consideration of companies’ obligations towards reputation rather than protect the incidence of harassment is somewhat our Women in Media research shows on Pacific Magazines to find smarter how communities will access local staff under the respective enterprise health and safety of their journalists and lower among those who have joined the that simply isn’t the case. Professional solutions that achieve the company’s news, information and entertainment agreements are fully met. employees. profession in the last five years (37 per women face sexual harassment and aims while maintaining jobs and if their suburban newspapers are so cent) but increase with tenure in the discrimination in their workplaces every upholding quality.” dramatically savaged. “This was certainly the case in the industry to nearly 60 per cent. day, and it is time media executives matter involving a now former Seven take direct ownership of the stamping The company announced 11 On November 9 Fairfax announced Network cadet journalist in Adelaide, MEAA Media section director out of this toxic culture that allows redundancies as well as other changes it was closing six community whose case highlights the timely need Katelin McInerney said: “When we harassment to continue and that ensures that will affect advertising, digital newspapers in Sydney with the loss of for senior media executives – who are released Mates over Merit in 2016 we senior, predominantly male perpetrators and production staff. MEAA provided 11 jobs, seven in editorial, and making predominantly men – to take direct called media organisations to put policies continue to be protected. assistance and advice to its members at seven staff redundant at The Weekly responsibility for ensuring the toxic into practice. Clearly this incident at Pacific Magazines during this period. Review in Melbourne – removing culture that allows sexual harassment Seven shows we are a long way off seeing “It has to end, now. This destroys the virtually all the employed staff on to be perpetuated, that protects employers implementing these policies. lives and livelihoods of hard-working In November 2017, Isentia announced that masthead in favour of freelance perpetrators and that fails to protect the It is time for media executives to put women doing great work and it has to 30 jobs would be lost as it moved its contributors. On November 8, News most vulnerable employees, is stamped their money where their mouths are: take end now,” Spicer said. broadcast monitoring service to the announced a 20 per cent reduction out for good.” a direct leadership approach to stamp Philippines. Isentia made all 22 full- in editorial staff from its Leader out harassment and to support women in MEAA said that while there would be time, part-time and casual staff in its community newspaper group in A survey conducted by Women in Media then media when they do come forward.” some variation in workplace policies, the Melbourne broadcast monitoring arm Melbourne – a loss of 13 positions. - an initiative developed by MEAA - and basic principle is that procedural fairness redundant. reported in Mates over Merit,101 found that Women in Media’s national convener has to apply. McInerney said: “This is of 1000 participants some 48 per cent of Tracey Spicer said she was “appalled” at an area of workplace and industrial CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 44 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 45

The Australian Federal Police, the Australian Border Force and the Australian Security Intelligence Organisation will all be under one department. Image: AFP

knowledge that is generally not well “MEAA believes in order to be afforded harassment. “While the media often shine known or understood my employees - and procedural fairness you should be a light on gender inequality in other employers often ensure it stays that way notified of the meeting 24 hours in occupations, it has refused to act on its in their own interests. Subsequently any advance; you should be notified about own dirty little secret,” North said. policies relating to raising complaints are the nature and agenda of the meeting either hard to find or not enforced. will be and that you should be informed In March 2018 Tracey Spicer announced of your right to have a support person or a cross-industry initiative to combat “If an employee makes a formal a representative from your union present sexual harassment in workplaces across complaint to their employer, the at that meeting. You should be afforded the spectrum. employer has an obligation to investigate the opportunity to provide a considered because there is a work health and response, particularly if the matter is NOW is a not-for-profit non-partisan safety issue and a duty of care on the disciplinary in nature.” organisation, led by the media and employer to ensure the employee works entertainment sector, devoted to in a safe and healthy environment. If Regarding the question of electronically ending sexual harassment in all a complaint is made against a member recording the meeting, the relevant Australian workplaces. It aims to of staff, procedural fairness must also legislation varies from state to state. In connect survivors of workplace sexual be afforded to them. An employee has South Australia you are entitled to record harassment and assault with the right the right during this process to be a conversation to protect your legal counselling and legal support, as represented by their union or to have a rights, however in NSW a conversation well as fund research and education support person present with them when can only be recorded where the other programs, work with government, making the complaint and during any party consents. business, statutory authorities, unions, subsequent investigations conducted by community and legal sectors to develop the employer,” McInerney said. Regarding the employer accessing an solutions for the future.103 employee’s emails, McInerney says: “It If a formal complaint has been made, is difficult to know how prevalent this is. On Equal Pay Day, Monday, September the employer is obligated to investigate. However, your contract of employment 4, MEAA encouraged members to “do Under workplace health and safety and likely various workplace policies will your bit to end the gender pay gap in our legislation, if a hazard is identified the often state that work emails are accessible industry” by taking action and calling GOVERNMENT employer is obligated to assess the risk by your employer at any time, and on all media employers to take action to and take measures to mitigate and if the certainly MEAA’s approach – particularly close the gender pay gap.104 employer does not, then it is potentially in the media realm – is to assume that: negligent so any injury that might result if you are operating on the employer’s The media industry’s gender pay gap is from that exposes the employer to system, unless there are provisions 23.3 per cent for people working in print prosecution and other litigation. in place that explicitly prevent your and publishing and 22.2 per cent (for THE “SUPER” plainly in the public interest, shows no from its citizens, but is not prepared to employer accessing your emails set out people in broadcasting. That places the sign of being whetted. demonstrate some if its own,” he said. If the employer fails to investigate a in your contract or enterprise agreement, media industry far beyond the national MINISTRY complaint, union members can contact the employer has unrestrained access to average of 15.6 per cent. “The new Home Affairs ministry doesn’t MEAA’s annual reports into the state their union to seek further advice and your work emails.” n July 19, 2017 MEAA issued a even appear to have the support of a of press freedom in Australia have representation in the matter. MEAA called on employers to take statement about its concerns range of national security specialists catalogued the numerous attacks and Sexual harassment in the media has immediate steps to improve their with the Government’s proposal and key members of the Cabinet. Their threats against journalists and their If a colleague makes a complaint against been reported on a number of times in organisation’s action on closing the Oto create a super Home Affairs concerns have been overridden in the sources by Australian governments since an employee, procedural fairness should recent years – Louise North’s 2012 study gender pay and opportunity gap: ministry. Of particular concern was the interests of creating a one-stop shop for 2001. “There is completely inadequate apply. If there is an enterprise agreement reported in The Australian on February • Implement tracking and transparency anticipated concentration of surveillance oppression of public discourse. oversight of our security agencies. The in place there may be an additional 27, 2012102 found that 57 per cent of the about the gender pay relationship; powers in the new ministry without any previous Independent National Security entitlement to representation during 577 female journalists surveyed had • Create family-friendly workplaces; and adequate external oversight.105 “We now have a situation where the Legislation Monitor (INSLM) resigned disputes or disciplinary meetings. experienced sexual harassment. • Dedicate their annual merit budget to militarised Australian Border Force, less than two years into the three-year fixing the problem of unfair pay. MEAA said it believed the corralling of with its extreme powers to imprison position, citing an ongoing lack of MEAA has written directly to the Seven An earlier MEAA survey through several government agencies with poor whistleblowers now sits alongside ASIO, resources. It’s unclear when the new Network about various issues relating International Federation of Journalists in records for observing and respecting with its ability to imprison journalists Monitor will be able to take up the post to employer investigations and sexual 1996 found that fewer than 52 per cent press freedom and transparency into and their sources for up to 10 years. or whether the resources available to the harassment in the workplace. of respondents reported experiencing one giant bureaucracy, raises profound These two agencies will now sit together Monitor will improve,” Murphy said. concerns. with the Australian Federal Police which in April admitted it had illegally accessed “As we have a said before: there is real MEAA chief executive Paul Murphy said: a journalist’s telecommunications data concern that government agencies could “Yesterday’s announcement of a super without a warrant,” Murphy said. once again misuse their powers to go after A 2012 STUDY FOUND 57 PER CENT OF THE ministry is deeply troubling for press whistleblowers, to go after journalism. freedom in Australia. Coming on the “It seems the only law reform the There will be appalling consequences 577 FEMALE JOURNALISTS SURVEYED HAD back of last week’s announcement on Government is interested in is re- if extreme powers such as those being encryption, the government’s appetite for doubling its efforts to punish those who sought are again misused to persecute EXPERIENCED SEXUAL HARASSMENT discovering all manner of inconvenient dare speak out in the public interest. The journalists and their sources.” information including that which is Government seeks utter transparency CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 46 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 47

The Australian Broadcasting Corporation’s Ultimo Centre

PUBLIC Public broadcasters increasingly have to “And yet there continue to be short-sighted, the nation. The cutbacks have increasingly fill the gaps left when commercial media mainly political, demands that the ABC required management to centralise BROADCASTING outlets withdraw their editorial coverage and SBS should merge – usually a vision operations in the Sydney corporate of key areas. Reducing funding not only that seeks to derive some fiduciary benefit headquarters. State-based programming he Coalition Government’s has an impact on the editorial resources rather than a thorough understanding of opportunities have been slashed, the politicised attacks on public the broadcasters can bring to bear; it also what a merger would mean,” MEAA said. regional presence has been reduced and broadcasting in Australia have undermines their charter responsibilities services for indigenous and multicultural Tcontinued during the past 12 to the Australian community and cripples MEAA also noted that talk of an ABC-SBS communities have suffered as a result. months. The attacks continue to undermine their ability to meet the demands of merger is “a distraction from serious issues the vital role public broadcasting plays technological innovation and development. of underfunding faced by both public The two public broadcasters have become in Australian life – particularly in the broadcasters. MEAA is sceptical that an Sydney-centric in the extreme, particularly areas of news and information; weakens Clearly, as the current media environment effective argument could be mounted to when compared with their commercial public broadcasting at a time when continues to put pressure on media bring the two institutions together. Merger counterparts in TV and radio programming. commercial broadcasting is struggling due outlets, the ABC is going to have to play efforts tend to have more to do with ‘saving Both ABC and SBS have a legislated to the challenges of digital disruption – an increased role in the provision of the silverware’ than improving operations obligation to tell Australian stories, to particularly for audiences in rural, regional news, information and entertainment as and content offerings.” provide relevant and local coverage to and remote Australia; and represent a commercial media companies cut back all communities, to enrich our national concerted politically-motivated assault on on editorial staff. Funding needs to be The rationale for a merger seems to be cultural life, and to provide balance, press freedom in Australia. restored to the ABC and new funds should only about making savings. But this simply accuracy and independence to our national be provided to ensure the ABC can provide papers over the real issue that public debate – regardless of geographic location. n PUBLIC INTEREST JOURNALISM local news as well as fill the gaps in the broadcasting in this country is underfunded Their funding must be increased to allow MEAA addressed these concerns in provision of regional and remote news for the digital age. This must be addressed them to do that. its submission to the Senate select where commercial providers have cut back as a matter of priority. committee on the Future of Public Interest or ceased to exist. In the same submission, MEAA also Journalism.106 MEAA stated that “political MEAA acknowledged that discussions addressed the role public broadcasting has decisions have led to dramatic funding MEAA urged consideration to be given to about transmission costs and platform in regional and rural Australia. cuts to Australia’s public broadcasters. exploring what is a proper funding level to sharing are good and worthwhile but any The broadcasters have had to cut their restore public broadcasting to its previous savings won’t address the underlying n RURAL AND REGIONAL cloth to suit. These funding cuts have levels and to ensure that it can at least be funding issue. Plus, what happens when AUSTRALIA not been imposed for the same economic one of the all too few voices available to the modest savings from a merger are The submission also looked at the role of imperatives that have led to the editorial Australian audiences should commercial absorbed? It would be extremely naïve to public broadcasting in the regions. It noted cuts at commercial media houses; they media continue to contract and abandon believe that savings could be reinvested that the structural decline in privately have been purely partisan political journalism and local newsrooms. Budget undoubtedly be followed up by other media traditional reporting areas. into programming and content rather than funded media has been felt at least as decisions that can be seen as revenge at cuts in 2014 saw the elimination of organisations. This is not an area where taken by the government of the day. harshly in regional as well as metropolitan worst or constraints at best.” the local Friday edition 7.30 program they are competing, despite its importance. If an agreed funding formula could be areas. Regional television newsrooms (formerly called Stateline), from all states If funding could be guaranteed to this sort found, MEAA said, funding should be Any financial benefits from a merger would have closed or been scaled back as never The MEAA submission noted that the ABC and territories diminishing the in-depth of programming, the resourcing of state quarantined from cuts in future budgets need to be balanced against the likely before.107 To exacerbate the decline in consistently ranks as one of Australia’s coverage of state politics, health, education and regional bureaus would need to be and instead guaranteed and regularly negative impact on the audiences of the regional news delivery, the ABC’s budget most trusted and respected institutions and environmental issues. strengthened and mandated. reviewed. ABC and SBS. Also, staff at the ABC and was cut by $254 million from 2014 to 2019. but it has been undermined in recent years SBS are still going through a painful period by political attacks on its journalism and a Deep cuts to reporting staff, field crews, However, at present the ABC looks likely The situation is similar at SBS where there of cost-cutting, programming changes MEAA said the ABC is a core regional media series of funding cuts. travel budgets and other current affairs to make more local cuts and continue seems to be an assumption that, because it and redundancies, and what is needed is organisation in Australia – it serves as both programs have also occurred across capital to centralise its major news and current is able to attract some advertising through funding restoration, not more uncertainty. a quality and trustworthy news source and Since 2014, about $270 million has been cut city newsrooms over the last three years. affairs resources in Sydney, and reinvest its hybrid funding model, its needs are now as a safety net. “A potent blend of funding from ABC funding, and ABC base funding This month the state issues TV program savings away from journalism and into satisfied. But the funding cuts imposed on Furthermore, it is clear that the funding cuts and misdirected organisational has been cut – in real terms – by almost Australia Wide, has been eliminated, and entertainment and new digital platforms. that broadcaster have also led to dramatic cutbacks are having a deleterious effect on priorities has seen the ABC’s ability to 25 per cent over the past 30 years. These plans to downsize influential radio shows This is to the detriment of its state and cuts to its resources, capabilities and how both broadcasters present themselves deliver stories of scale and substance to funding cuts have placed enormous stress AM, PM and The World Today look likely. international coverage across the country. program offerings. through their programming to the whole of regional communities severely hampered.” upon the ABC, which is being asked to International bureaus have also been do more with less, particularly on digital downscaled over the last decade following The increasing use of casualisation and platforms. the cancellation of Australia Network – short-term contracts in remaining staff with many overseas bureaus manned by pools is also diminishing the capacity The impact of the cuts can be seen in the single-person video-journalists. for fearless, investigative public interest constant redundancies being implemented, journalism. the axing of popular programs like Catalyst The single biggest contribution that could on ABC TV and music programs on Radio be made would be the reinstatement of ABC journalists, editorial and support National, the doubts about the future of 7.30 state programs. It would answer many staff have more than delivered higher ABC Classic FM, and the outsourcing of of the questions about weekly scrutiny productivity in these difficult conditions, comedy and drama programming to private of state matters that are falling by the continuing to produce high quality and producers. wayside. This is a space no private media independent news and current affairs has entered with any rigour. However, content and programming. But this is Constant cuts are also negatively affecting the stories picked up in the states and unsustainable without increased funding. the ABC’s ability to fund public interest regions through this programming would CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 48 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 49

into the charter. Frankly, we are concerned Review Committee that informed this n COMPETITIVE NEUTRALITY about how those words will be read, amendment said about a “right of reply”: OF THE NATIONAL certainly, by people who choose to take an BROADCASTERS INQUIRY aggressive view towards achieving a false “The standard does not go as far as balance, I guess, not based on the weight of making the giving an opportunity an This is another measure promised as part evidence.”116 absolute requirement, because there will of the media reform package. On March 29, be occasions when, despite reasonable 2018, the Turnbull Government appointed MEAA also concurs with the ABC’s head efforts made in good faith, the subject of a panel to conduct an inquiry into the of editorial policy Alan Sunderland’s the report cannot be contacted. Or… the competitive neutrality of the two public commentary on the merits of the Bill. subject may have ‘gone to ground’.”121 broadcasters. The Government says the Sunderland’s told a Senate estimate’s “inquiry will examine whether the ABC and hearing: “Notions of fairness and balance MEAA noted in its submission that SBS are operating in a manner consistent need to be carefully unpacked and a “right of reply” is not the same as with the principles of competitive explained in order to avoid some of the “balance”. Balance assumes that multi- neutrality. These principles provide that pernicious issues that can affect journalism faceted discussion is taking place and government business activities should not around false balance. So I think putting that, despite the merits of some parts of enjoy net competitive advantages simply by 123 Senator Mitch Fifield Minister for them in the charter in the duties of the the discussion and the unworthiness of virtue of their public sector ownership.” Communications and the Arts, Image board is a combination of unnecessary other parts, each and every side must be The panel will consult relevant courtesy Andrew Meares, Fairfax Photos and potentially misleading. I think that, given equal measure. “The practice of stakeholders during the Inquiry and be while those notions can and do exist, they journalism, through newsgathering and supported by our National Broadcaster exist in a very carefully described and news reporting, does not work that way Review Taskforce. contextualised way already in our policies, because facts are not elastic.” Inconsistent and reduced regional funding of the media environment are felt most MEAA rejected the inference contained in and that’s where they belong.”117 Robert Kerr, a consulting economist and makes it extremely difficult to attract at local levels, outside the major cities. the Bill inferred that balance and fairness MEAA added that the MEAA Journalist former head of staff at the Commonwealth and retain journalists in regional and This is one area, however, where a small are not present in the ABC’s editorial In his commentary for ABC Online on 2 Code of Ethics makes it clear in that same Productivity Commission, will chair the rural locations and for them to develop investment by government could produce operations. November, 2017, Sunderland noted that: first clause that MEAA Media’s members panel which includes former Free TV chief familiarity with an area. It follows that the significant improvement. Small regional “When it comes to ‘balance’, we explain have an obligation to “report and executive Julie Flynn and director and corporation’s ability to cover and report communities are poorly served for local MEAA noted that the corporation’s very carefully that ‘impartiality does not interpret honestly, striving for accuracy, producer Sandra Levy.124 stories of regional interest and significance news and the inquiry is of the view that the detailed editorial policies already recognise require that every perspective receives fairness, and disclosure of all essential is severely compromised. situation could be ameliorated with some all necessary professional journalistic equal time’, but that one of the hallmarks facts.” The government has told the panel to limited support by the government.” 109 standards and that the policies exceed, of good journalism is balance that ‘follows inquire into the: The submission said: “There is some in scope and length, any other known the weight of evidence’. Importantly, MEAA contended that • Application of competitive neutrality opacity to the true number of ABC In contemplating the ABC as the recipient editorial policies covering Australian requiring journalists to apply the principles to the business activities employees in regional and rural locations of additional funds, the Finkelstein inquiry media organisations. “In short, ‘fairness’ and ‘balance’ are not Bill’s notion of balance may compel of the ABC and SBS, including in and those providing content to those noted that “the additional funding could and never have been recognised standards them to apply a distorting emphasis to operational decision-making and risk locations. The ABC did report regional be tied to specifically designated functions MEAA also noted the Bill’s introduction of objective journalism. They can be helpful irrelevant, non-newsworthy material management; employee numbers in 1996 (1029 “regional and conditional upon specific undertakings came six months after the Fox News indicators of impartiality and accuracy, but that is not factually based. • Regulatory obligations for the ABC and services” employees), 1999 (1082 in “local on its use”.110 Network in the United States abandoned only if they are put in the right context and SBS compared to those for private sector and regional services”) and as recently as its provocative “fair and balanced” motto, used wisely. In other words, if something Indeed, a fair and contextual reading operators, insofar as this these relate to 2008, when it reported 946.5 employees in MEAA said it would strongly support such which was surely the inspiration for the is ‘accurate and impartial’ it will always of the MEAA Journalist Code of Ethics competitive neutrality principles; “radio and regional content”. The ABC’s an initiative. attack on the ABC’s independence.114 meet the recognised standards of objective undermines the Minister’s observations • Adequacy of current compliance and 2016 Annual Report included a pie chart journalism. If it is fair and balanced, it about the Code’s contents, MEAA said in reporting arrangements; and that stated that 10.07 per cent of employees n “FAIR AND BALANCED” The Bill seeks to amend section 8(1)(c) of might not.” 118 its submission. “In each case where the • Complaints and accountability worked in regional areas. On current On November 16 2017, the Senate referred the Australian Broadcasting Corporation word “fairness” appears on the Code of mechanisms operated by the figures, this equates to 421 employees. the Australian Broadcasting Corporation Act 1983. The redundancy of the proposed MEAA also noted that the Communications Ethics, it has power and certainty. Out broadcasters, insofar as they relate to Amendment (Fair and Balanced) Bill amendment is self-evident: section 8(1)(c) Minister Mitch Fifield has sought to justify of context, as expressed in the proposed competitive neutrality principles.125 “Looking at the figures from another 2017 to the Senate Environment and already requires accuracy and impartiality the Bill by reference to MEAA’s Journalist legislation – “fair and balanced” – it angle, the number of regional and rural Communications Legislation Committee “according to the recognised standards Code of Ethics, which he said “refers to is at best meaningless and at worst SBS said it would fully cooperate with the employees has been reduced from 25 for inquiry.111 The Bill was introduced by of objective journalism”. Elsewhere in ‘fairness’ no less than six times.”119 dangerous. It could far too easily be inquiry. Managing director Michael Ebied per cent of employees in 1998 to 10.07 the Turnbull Government to satisfy Pauline the ABC’s editorial policies, concepts and interpreted as a demand that every piece noted that “it is difficult to contemplate per cent of employees in 2016.108 It does Hanson’s One Nation Party in exchange duties related to independence, integrity, MEAA’s first Code of Ethics was introduced of journalism contain equal amounts of how a broadcaster the size of SBS that appear that the number of ABC regional for the latter’s support for the Coalition’s objectivity, impartiality, together with the in 1944 by MEAA media’s forerunner, the coverage from or about opposing views. has its commercial operations limited by employees has fallen far faster than package of media reforms.112 need for “fair and honest dealing”115 are Australian Journalists Association. Neither That is not objectivity (which is what we legislation could be a threat to the business overall employment levels.” acknowledged and articulated. at that time nor at any point has the Code all demand of quality journalism). Real activities of its commercial counterparts, On December 15, 2017, MEAA made a ever mentioned “balance” as an ethical objectivity entails presenting, to the which benefited only recently from changes The loss of regional and rural journalism submission to the inquiry. MEAA stated ABC managing director Michelle Guthrie requirement. best of one’s capacity, impartiality rather to media laws and a major reduction of resources was canvassed in 2012’s that the Bill was misleading and dangerous, has expressed mystification with the than artificially determined word counts, their licence fees.”126 Finkelstein report which noted that, and should be withdrawn without further purpose of the Bill. She stated at an In Clause 1 the Code states, “Do your sound bites or images.”122 “although most attention is at a national debate. 113 Estimates hearing held in October 2017 utmost to give a fair opportunity for level, often the short-comings in that: “So I query, again, what problem reply”120. This was added to clause 1 in journalistic surveillance and in the richness we’re trying to solve to add those words the late 1990s. The report of the Ethics CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 50 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 51

Ten Network’s Pyrmont Studios

MEDIA “It is perhaps a reflection of the parties’ media outlets and the provision of local assumed strength in the Australian television content in regional Australia.” To be clear, MEAA supported the removal OWNERSHIP media that such a bold endeavour, plainly of the 75 per cent reach rule which has aimed at pressuring regulators – would The Government’s package sought to been entirely superseded by digital n July 24, 2017 MEAA made a be advanced. We are not aware of a repeal media ownership and control rules technology and the streaming practices of submission to the Australian precedent for acquisitions being sought that prevent: a range of media (and other) organisations. Competition and Consumer when the law is plainly against such • A person from controlling commercial MEAA also supported the extension of local Commission’s (ACCC) review of endeavours,” MEAA said. television licences whose combined content requirements following trigger O 136 the potential joint bid for interests in licence area populations reach more than events. “This is a necessary and desirable Ten Network Holdings by two private MEAA added that Ten employees, who 75 per cent of the Australian population change,” MEAA said. companies Birketu and Illyria. were anxious to learn of their professional (known as the “reach rule”); and future, may be being compelled into • A person from controlling more than But MEAA was concerned that the two-out- In its submission MEAA noted supporting (or not opposing) the first two of the three regulated forms of of-three rule would be removed without that there is an understanding and potential takeover offer. “Our members media (commercial radio, commercial broader consideration being given to the acceptance that the concentration of at Ten Network have received no television and associated newspapers) need to identify and enforce the terms media ownership in Australia is one of undertakings as to their employment in one commercial radio licence area upon which all media organisations may the highest in the world.127 security or the maintenance of quality (known as the “two-out-of-three rule”). provide services to the Australian market news media content. This potential and provide consumers with greater choice. The companies that were being review deal also does a disservice to the public The Government said its reform package are owned by Bruce Gordon and Lachlan interest in maintaining plurality in media would also “strengthen local content MEAA was concerned that the bill’s Murdoch respectively. ownership. Any changes to the two-out- obligations on regional commercial dominant focus was on relieving of-three rule will undoubtedly usher in television licensees following a change in the regulatory burden on currently The ACCC’s request for submissions further consolidation.” control, such as a merger, that results in regulated entities. The benefit the bill outlined that Murdoch is a key player them being part of a group whose combined seeks to provide to these entities is in US media conglomerate News On August 24, 2017, the ACCC announced licence area populations reach more than 75 the ability to consolidate and achieve Corporation. He is an investor through it would not oppose the joint bid.128 per cent of the Australian population”. broader scales of operation and the Murdoch family’s 39 per cent However, subsequent to that decision, efficiencies in service delivery. investment in News Corp and 21st the CBS Network of the United States The Government said it is maintaining Century Fox. The ACCC request also made a $41 million takeover offer for the other diversity rules including the “five/ In an already heavily concentrated recorded his personal links with Ten – he network which was successful.129 four” rule, the “one-to-a-market” rule and Australian media-market, MEAA said this is a former acting chairman; he already the “two-to-a-market” rule. The Australian approach undermined the public policy owned 7.44 per cent of Ten through Illyria In a statement, MEAA welcomed the Competition and Consumer Commission benefits of media diversity. While MEAA and his family has an interest through positive intent from CBS and noted that will retain its powers to scrutinise mergers favours a genuine levelling of the playing News Corporation’s stake in Foxtel which CBS had a pre-existing relationship and acquisitions and is in the process field, fewer voices would do a disservice to is 13.9 per cent of Ten. Murdoch also with Ten. As an investor in Eleven (CBS of updating its media merger guidance the Australian community. owns a substantial radio network and owns one-third) and long-term program accordingly. 21st Century Fox has a programming supplier, CBS appeared well-placed to adding that different levels of content “protect and enhance the amount of local MEAA supports a broader approach deal with Ten. There are other Murdoch provide continuity and certainty for staff. In February 2017, Fifield blamed Labor for related to business models. However, some television content in regional Australia as to media reform that draws on the investments that also have programming stalling on the legislation after the package Coalition MPs supported a Senate inquiry well as introducing an incentive for local observations and recommendations of arrangements or opportunities with Ten. MEAA also noted that removing the passed the House of Representatives but to examine any proposed changes. content to be filmed in the local area”. the Convergence Review. In particular, two out of three ownership rule was not stalled in the Senate where it will need MEAA supported a single, platform-neutral Similarly, the ACCC’s request for required to ensure the survival of Ten. cross-bench support to pass. A year later, and Minister Turnbull was The government plans to maintain “converged” regulator oversighting a submissions made clear Gordon’s existing “Media diversity is vital to the health again airing the possibility of changes to other diversity rules including the “five- common regulatory regime. investment in Ten, his ownership of the WIN of our democracy and the national This latest package of media reforms media ownership laws133. four” rule, the “one-to-a-market” rule Network and his stake in the Nine Network. conversation. Ten has endured significant dates from March 9, 2014 when the then or the “two-to-a-market” rule. Changes MEAA recalled that the Convergence sweeping cuts to its newsgathering Communications Minister Malcolm Finally, on March 1, 2016 the government to the anti-siphoning list are not part Review had proposed a targeted and In its submission MEAA stated that capability in recent years. MEAA hopes Turnbull said that the government tabled its media reform legislation.134 of this package.135 refined approach to reforming media the situation outlined in the ACCC’s the prospect of stability at the network was considering changes to the media Under the reforms, the government would ownership rules. This approach was based request amply demonstrated that the will lead to greater investment in news ownership laws to reflect changes in the repeal two media control and ownership MEAA made a submission to the Senate on a “minimum number of owners” rule two potential bidders already enjoy production and editorial staff.”130 industry due to the rise of the internet.131 rules in the Broadcasting Services Environment and Communications and also included a public interest test substantial media interests and it “Why do we have a rule that prevents one Act 1992 that currently prevent a person Legislation Committee’s inquiry into the replacing a suite of rules, including the two would not be satisfactory for Illyria, in of the national networks acquiring 100 per from controlling: Broadcasting Legislation Amendment (Media now earmarked for termination by the Bill. n particular, to be successful in acquiring a GOVERNMENT MEDIA cent coverage, why is there a rule that says • Commercial television licences that Reform) Bill 2016 and also appeared at its 50 per cent stake in Ten given the extent REFORM PACKAGE today that you can’t own print, television collectively reach in excess of 75 per cent public hearings. MEAA was concerned that the government of the existing media interests of Illyria The Turnbull Government reintroduced and radio in the same market? Shouldn’t of the Australian population (the has not fully considered how diversity will and Murdoch. its media reform legislation to the that just be a matter for the ACCC “75 per cent audience reach rule”); and MEAA believed the bill avoids advancing be fostered under a partially–reformed Parliament in September 2016. [Australian Competition and Consumer • More than two of the three regulated comprehensive and integrated reforms media system. MEAA noted that the parties to the Communications Minister Senator Mitch Commission]?” he said. forms of media (commercial radio, in favour of select changes that will “It is well and good to assert that potential transaction had sought Fifield said: “The media reform package commercial TV and associated have a modest, if not harmful, effect. “It the internet will deliver more media consideration of their partnership in is substantially unchanged from that The idea did not gain traction because newspapers) in the one commercial radio is frustrating that current unregulated organisations due to the relative ease with circumstances where two existing media introduced in March this year (2016). The of concerns from Turnbull’s Coalition licence area (the two-out-of-three rule). content providers and potential future which digital content can be delivered, ownership laws – two-out-of-three and package will result in major changes to colleagues who feared that local content rivals will be unable to gain any insight into but no real contemplation has occurred the reach rule – barred such a transaction the regulations governing the control could be reduced132. But Turnbull argued A third option was the government would the future regulation of our media market concerning the type and scale of these new occurring. and ownership of Australia’s traditional content was not the same as ownership, also introduce changes that it says would from this bill,” MEAA said. entrants and whether they will compete CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 52 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 53

with major organisations or occupy niche are drafted to encourage media diversity spectrum charge, providing close to interest areas,” MEAA said. in the digital age. The effect of doing $90 million per annum in ongoing otherwise will be greater consolidation and financial relief to metropolitan The Department of Communications’ own fewer voices in media organisations of scale. and regional television and radio June 2014 Policy Background Paper on broadcasters. Media Control and Ownership acknowledged As debate about the media reform package • A substantial reduction in gambling that digital technologies would erode “the continued in the Parliament, MEAA issued advertising during live sport broadcasts, historic delineations between traditional a statement expressing its concerns.140 representing a strong community and new media”. It nonetheless made the MEAA reiterated its belief that the removal dividend with the establishment of a important qualification that: of the two-out-of-three ownership rule clear “safe zone” for families to enjoy will mean an inevitable loss of diversity in live sport. More broadly, the proliferation of online the Australian media, says the union for • Abolition of redundant ownership rules sources of news content does not necessarily Australian journalists and media workers. that shackle local media companies and equate to a proliferation of independent inhibit their ability to achieve the scale sources of news, current affairs and analysis. “Throughout this long debate, mergers necessary to compete with foreign tech Indeed, the internet has, to date at least, and acquisitions have been talked about giants. tended to give existing players a vehicle to as the inevitable consequence of removing • Retention of diversity protections that maintain or actually increase their influence. ownership rules. That means fewer owners ensure multiple controllers of television This pattern can be seen in Australia where and it also means fewer journalists after the and radio licences as well as minimum to date, the established media outlets have job losses that follow mergers,” MEAA said. numbers of media voices in all markets. tended to dominate the online news space.137 These are the two-to-a-market rule MEAA chief executive Paul Murphy for commercial radio, the one-to-a- This observation gives MEAA considerable commended the Nick Xenophon Team for market rule for commercial television, pause for thought when assessing the attempting to get the Turnbull Government the requirement for a minimum of need to dispense with regulations in to adopt a jobs and innovation package - five independent media voices in (this included the Competitive Neutrality The proposed fund will provide $16.7 • Being a member of the Australian their entirety. positive initiatives and policy changes to metropolitan markets and a minimum of the National Broadcasters Inquiry million in grants per year over three years Press Council or having a robust and genuinely foster increased diversity in our of four independent media voices in – see more in the section on public (totalling $50 million) to support eligible transparent complaints process, and MEAA said it believed the other media landscape. “Any initiative to support regional markets, and the competition broadcasting above); publishers to transition and compete • Having in place editorial guidelines, a rules geared towards national and new investment in journalism is welcome, assessments made by the ACCC. • Changes to section 8 of the ABC Act to more successfully, through in part, better code of conduct or similar framework regional media diversity are also being but it should not come at the price of • Higher minimum local content include the words “fair” and “balanced” enabling businesses to develop new relating to the provision of quality compromised. The Department of existing safeguards being removed,” he said. requirements for regional television (this became the Australian Broadcasting business models and practices. MEAA journalism. Communications’ 2014 media background following trigger events, including Corporation Amendment (Fair and understands that grant funds may not paper also reported that 72 licence areas “Australia, which already has one of the introducing minimum requirements in Balanced) Bill 2017 - see more in the be allocated towards salaries, but will be Grants would be capped at a maximum in regional Australia were “at or below highest concentrations of media ownership markets across South Australia, Victoria, section on public broadcasting above); and available for initiatives that support the of $1 million per year for any media the minimum floor in terms of voices”.138 in the world, is now saying that a plurality New South Wales, Western Australia and • A community radio package.145 continuation, development, growth and group, and at least two thirds of total of media voices doesn’t matter. And the Northern Territory for the first time innovation of Australian civic journalism. funding must go to regional publishers MEAA did not agree with Communications history shows that once diversity is lost, (on October 18, 2017, the Senate referred In the submission, MEAA strongly and not less than 25 per cent for non- n Minister Fifield’s assertion that “even you cannot get it back. The structural this issue to the Environment and THE REGIONAL AND supported the emphasis on such journalism. regional publishers. with two out of three removed and challenges faced by the Australian media Communications References Committee SMALL PUBLISHERS JOB AND consolidation occurring, there would still sector will only be slightly stalled by these for inquiry143 – MEAA made a submission INNOVATION PACKAGE The Government has advised that the types MEAA supported the fund’s administration be significant ownership diversity amongst reforms. As companies amalgamate, more to the inquiry on February 21, 2018144). On December 7 2017, the Senate of projects that may receive funding include by the Australian Communications and sources of news”.139 media jobs will be lost and with their loss, • Reforms to anti-siphoning to strengthen referred the Communications Legislation purchasing/upgrading equipment and Media Authority (ACMA) and broadly public scrutiny will be further reduced.” local subscription television providers. Amendment (Regional and Small Publishers software, software development, business supported ACMA seeking input on the MEAA supported comprehensive media Innovation Fund) Bill 2017 to the Senate activities to drive revenue and readership, distribution of grants from an external reform over a process that simply relaxes On October 16, 2017 the media reform The Government said it would also Environment and Communications and training. Advisory Committee comprised of conditions for long-standing media package was finally passed in the implement a $60 million Regional and Legislation Committee for inquiry.146 the Australian Press Council, The companies. Some minimum conditions Parliament with the support of cross- Small Publishers Jobs and Innovation MEAA made a submission to the inquiry The eligibility criteria for these projects are: Walkley Foundation and the Country based on reasonable thresholds of benchers including Pauline Hanson’s package (see below) including: on January 7 2018.147 • Annual turnover of not less than Press Association. The engagement of economic activity or revenue must be One Nation Party which successfully • A $50 million Regional and Small $300,000 revenue and not more than independent stakeholders is vital to the established for all players – old and new won Government support for its plan Publishers Innovation fund; MEAA noted that there are three core $30 million in revenue effective distribution of these funds. – to ensure market equality. MEAA is also to impose politicised restraints on the • A Regional and Small Publishers components of the Government’s program: • A primary purpose test (of producing wary that leaving a regulatory vacuum Australian Broadcasting Corporation in cadetship program to support 200 • The $50 million Regional and Small civic and public interest journalism with But regarding the proposed independence for any length of time may condition return for its vote.141 cadetships; and Publishers Innovation Fund; an Australian perspective) test, MEAA said the Bill’s use of the word media companies to resist the future • 60 regional journalism scholarships. • The Regional and Small Publishers • An Australian residence test (being “union” strongly infers a partisan intent implementation of new arrangements. “The Government’s grubby deal with One Cadetship Program, which will support incorporated under Australian law and by the Bill’s sponsors. MEAA stated that Nation is beneath contempt. Facilitating Legislation would be introduced to 200 cadetships, at approximately having central management in Australia) if this element of the independence test Media diversity requires policing to baseless attacks on our public broadcasters implement: $40,000 per cadetship; and • An independence test (not affiliated with is maintained, it is essential that the word ensure the public interest is met. It is is disgraceful and we will be lobbying • A public register of foreign-owned media • 60 regional journalism scholarships. a political party, union, superannuation “union” be replaced with “registered not necessarily a natural consequence of Senators to reject any legislation when it is assets (this became the Foreign Influence fund, financial institution, non- industrial organisation”. technological advancement. presented,” Murphy said.142 Transparency Scheme Bill 2017); MEAA acknowledged the potential benefits government organisation or policy • Proposals to “enhance” the ABC’s focus of these programs, but maintain our view lobby group) MEAA also strongly queried the utility of MEAA said it believed the Turnbull The measures in the final package include: on rural and regional Australia; that these developments are insufficient • A control test (being an entity that requiring an entity be “majority controlled Government should defer abolition of the • The abolition of broadcast licence fees • A range of “enhanced” transparency “compensation” for abandoning the two- is majority controlled by Australian by Australian residents”. This criterion two-out-of-three rule until plausible laws and replacement with a more modest measures for the public broadcasters out-three media diversity rule. residents) seems selective and designed to isolate CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 54 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 55

potential applicants who otherwise fit MEAA questioned why the cadetships MEAA said it welcomed that emphasis ASYLUM squarely within the program’s objectives. were of only 12 months’ direction. “This would be placed on journalism courses departs from the longstanding media capable of providing students with the SEEKERS In the submission MEAA said it strongly industry practice of two-to-three year skills and knowledge necessary to work in believe that the key determinant for grant cadetships (other than for graduates), as multi-platform media environments and n February 2017 MEAA launched a eligibility should be an entity’s capacity acknowledged in numerous industrial data analytical abilities. “This support campaign, Bring Them Here, to have to cover and deliver bona fide Australian agreements that MEAA is a party to. MEAA is, however, tempered by the capacity Ijournalist Behrooz Bouchani, cartoonist public interest journalism. “We also query believes the 12 month cadetship must be for scholarship recipients to run into an Eaten Fish, and a performer released from why the term ‘Australian residents’ was reviewed and converted to two years. employment “dead-end” (i.e. no available Manus Island asylum seeker regional chosen ahead of ‘Australian citizens’.” jobs) at the end of their scholarship. In processing centre.150 On December 19, 2017 MEAA also noted the eligibility criteria several respects, this is the most risk- MEAA was delighted to learn that Eaten MEAA added that “although we generally are the same for cadetships and restated intense of the three programs in terms of Fish had left Manus and was on his way to support the requirement of fund recipients its concerns about the proposed sustainable employment outcomes.” being resettled in Norway. being a member of the Australian Press independence test and the use of the Council, we query who will judge whether word “union”. MEAA also noted that students would On November 14, 2017 MEAA formally non-APC members have ‘robust and be expected to be either located in complained to the Australian and PNG transparent complaints processes”. MEAA also sought information about regional areas or to have (and be able prime ministers about the singling out how increasing journalism resources, to demonstrate) a strong connection to and deliberate targeting by PNG police MEAA also commented on the proposed rather than replace existing jobs’, would a regional area. “We query whether this of Iranian-Kurdish refugee journalist cadetship program. The Government had be safeguarded and proposed an ongoing requirement may distort which applicants Boochani.151 He had been detained advised that “to assist the creation of audit and the public dissemination of receive scholarships and/or curb attraction by PNG police at the Manus regional employment opportunities in regional journalist headcounts at entities receiving to the scholarships. By this, we mean that processing centre. media and ensure that journalists continue program funding through the ACMA many communications and journalism to provide informative and compelling annual report. students study at regional universities, MEAA believed that comments by regional news, the Government will support but then either return or relocate to PNG police show Boochani was being Behrouz Boochani 200 cadetships over two years through the “It is vital that these initiatives be metropolitan areas. In addition, a student deliberately targeted for his journalism Regional and Small Publishers Cadetship administered in a manner consistent with from a regional area (thereby satisfying and his detention in handcuffs Program’. Of the 100 cadetships available national employment laws and standards. the ‘strong connection to a regional area’ amounted to an outrageous attack on In its letter, MEAA has called on the two If, as the case appears to be, he has been each year (from 2018-19), between 80 and To be clear, MEAA assert that cadetships criterion) may be studying at, for example, press freedom. prime ministers to ensure that those targeted and arrested because of his profile 90 will be for regional publications.” awarded under this program must be of the University of Technology Sydney and engaged in the outrageous assault on press and his role as a journalist in an attempt to no lesser benefit – in terms of both salary have little or no intention of practising Boochani was likely selected for this freedom on Manus Island be reminded of silence him, this is an egregious attack on MEAA noted that an employer’s eligibility and conditions - than otherwise provided journalism in their home (or other special treatment because of his journalism their obligations to protect journalists and press freedom that cannot be let stand. to engage cadets is not subject the revenue in an employment agreement covering the regional) location(s). reporting on the situation on Manus. The working media covering important news thresholds that apply for the Innovation employer receiving government assistance. determination of PNG police officers from stories on Manus Island, and observe their “We call on the Australian and PNG Fund. “We further note that regional Under no circumstances should cadets “We believe that the core criteria should the outset to find “the journalist” suggests obligations towards freedom of expression governments to release him from custody, media organisations – as compared with be engaged as independent contractors,” be a student’s commitment to undertake the officers intended to disrupt and muzzle and press freedom. assure his safety, and not to hinder him (undefined) ‘small metropolitan publishers’ MEAA said. editorial work (either as an adjunct to any live reporting of the activities of the from continuing to perform his role as – will not have to meet the control test, their studies or as a clear undertaking) in PNG police while they conducted their On November 24, MEAA reiterated its a journalist. We will also be bringing which concerns majority control of a media The package’s 60 regional journalism a regional area immediately after their operation inside the centre, and that by support for Boochani.152 MEAA Chief this to the immediate attention of the entity by Australian residents. The absence scholarships would be made available studies are completed,” MEAA said. getting a working journalist removed Executive Paul Murphy said Boochani International Federation of Journalists, the of this requirement jars with the obligations over a two year period commencing from the scene of the police action, media appeared to have been deliberately targeted global body for journalists,” MEAA said. concerning the Innovation Fund. The in 2018–2019, with each scholarship Although MEAA was supportive of the coverage of the event would be minimal. by Papua New Guinea police in another reasons for excluding regional employers valued at $40,000. The funds will be general approach of the three strands of crackdown because of his high profile Three weeks earlier, Boochani had been from this requirement are unclear. It may able to be used by recipients to pay Government action, it expressed a concern MEAA chief executive Paul Murphy said: as a journalist reporting from inside the awarded the Amnesty International be that the inconsistency between the for course related expenses, including that short-term assistance programs may, “For years now, a veil of secrecy has detention centre. Australian Media Award for his programs’ eligibility criteria illustrates the tuition fees, accommodation and living without follow-up, do not much more than cloaked every aspect of the government’s journalism from Manus Island. Earlier undesirability of mandating Australian costs. Scholarships would be allocated to temporarily boost the numbers and scope asylum seeker policy. The role of the “Behrouz has been one of the main sources in 2017, he had been shortlisted in the residency (as a stand-alone concept) in any institutions across the country so that of journalists and journalism. media is to hold the powerful to account of factual information about conditions journalism category for the 2017 Index of these initiatives.” students in every state and territory have and to scrutinise what they do. Behrouz inside the Manus Island detention centre on Censorship’s Freedom of Expression an opportunity to apply. As this press freedom report was being Boochani is a former magazine editor for the past few years, and his reporting Awards. Boochani’s work has been Cadetships under the program would be prepared, the Bill was subject to delays and publisher. His reports for various has been published in Australia and published in Guardian Australia, and The supported via a wage subsidy of up to However, MEAA said it was not clear in Parliament, largely related to whether Australian media outlets have finally internationally,” Murphy said. Saturday Paper, among other publications, $40,000 (GST inclusive) per journalism whether the $40,000 per scholarship overseas media organisations can benefit given us a glimpse into the conditions on while his film about life inside the Manus cadet. MEAA support the principle that funding assistance is meant to cover from the fund148, and the legislation may Manus faced by refugees. His reporting “His reporting in the finest traditions of detention centre, Chauka, Please Tell Us employers should provide matched one year, two years or an entire course/ struggle to meet the program’s July 1 has been exemplary and has been journalism has been critical when the the Time was screened at the Sydney and funding as a safeguard for the appointed period of study or a lesser period. launch date.149 recognised with an Amnesty International Australian and PNG governments have London film festivals. cadets. Cadetships will be offered for 12 Communications Minister Mitch Fifield’s Australia Media Award. done everything they can to prevent media months and would give recent graduates media statement had referred to “$2.4 from having access to the asylum seekers On December 20 2017, Boochani was the opportunity to train in multi-platform million over three years” MEAA said, “The actions and statements of PNG police on Manus Island. granted an International Federation reporting, as well as workplace-based whereas his department’s advisory confirm that Boochani was targeted during of Journalists’ press pass which will be learning, as the basis for professional (on- note refers to scholarships being “made the police operation on Manus. That is a “Without Behrouz’s courageous reporting at delivered to him on Manus Island. the-job) mentoring. available over a two year period”. clear assault on press freedom,” Murphy said. great personal risk, the world would be less informed about the crisis on Manus Island. CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 56 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 57

Twitter headquarters in San Francisco

indicator imposed on journalists (on pursued by an individual with the privacy tort. Given this, they consider top of demands to file more words, with intention of intimidating and distressing that there is “[s]ignificant potential for fewer errors, for immediate publication another person… an harassment style of action or crime on the media outlet’s web site in advance to significantly impact on bona fide or publishing or broadcasting on Harassment involves deliberate conduct. journalistic activities”. traditional media). It may be done maliciously, to cause anxiety or distress or other harm, or With regard to criminal remedies In many cases, journalists are being it may be done for other purposes. for harassment, the report noted the compelled by their employers to express Regardless of the intention, harassment Commonwealth Criminal Code’s sections opinions regarding news events, the news will often cause anxiety or distress. 474.15 (threats to kill or to harm with stories they are working on and other Harassment also restricts the ability of an penalties of imprisonment for 10 or seven news stories by developed by their media individual to live a free life. years respectively; and proof of actual employer – all with the aim of interacting fear not being necessary) and 474.17 with an online audience, driving The report recommended the enactment (using a carriage service to menace, engagement and building traffic numbers of a harassment tort if a privacy tort is not harass or cause offence with a penalty of to impress advertisers. enacted: imprisonment for three years). The report noted that there was a general lack of It is the nature of social media that heated Generally, a new harassment tort should awareness of the relevant provisions and discussion takes place, often without capture a course of conduct that is of the penalties that existed and that this reference to facts or objectivity, and often genuinely oppressive and vexatious, not had led to very few actions being brought with too great a willingness to allow merely irritating or annoying. The tort under the Code. It added: debate to become personal, abusive and should be confined to conduct that is threatening. The fact that many social intentionally designed to harm or demean In consultations the ALRC heard media users depend upon and even thrive another individual. concerns raised that state and territory on such abuse, often within the veil police may be unwilling or unable to of anonymity, leaves many journalists A harassment tort should also be the enforce criminal offences due to a lack of exposed to quite horrifying cyberbullying. same throughout the country. The states training and expertise in Commonwealth Journalists are, by their nature and by the and territories should therefore enact procedure which often differs requirements of responsible journalism, uniform legislation, if the Commonwealth significantly from state and territory accessible to the public. They usually does not have the Constitutional power to police procedures. engage openly, using their own names, enact a harassment tort. in order to make social media the tool With reference to cyberbullying per se, for increasing audience responsiveness – The report acknowledged the role of the report said: “The Department of SAFETY exactly the sort of increase in “eyeballs” cyberbullying carried out against children: Communications outlined three options on news stories that media employers for reform to s 474.17. First, to retain demand of their journalist employees. At present, Australian law does not the existing provision and implement provide civil redress to the victims of education programs to raise awareness CYBERBULLYING As outlined above, the nature of harassment. There is some protection of its potential application. Second, journalists’ contact with their audience in defamation law, as well as the torts of to create a cyber-bullying offence on digital media platforms, including via battery or trespass to the person where with a civil penalty regime for minors. social media, makes them particularly conduct becomes physically threatening Third, to create a take-down system n September 7, 2017 the long before the widespread use of The dissemination of news through vulnerable to cyberbullying. As part of or harmful. If bullying or harassment, and accompanying infringement notice Senate asked the Legal and digital technology. Now there are a publishing or broadcasting story is a their employment they must openly including cyber-bullying, occurs on scheme to regulate complaints about Constitutional Affairs References multitude of platforms available for the second method of engagement. In the engage with the audience which, in school property within school hours, online content. The lived experience of OCommittee to inquire into the widespread dissemination of opinions past, this sometimes gave rise to follow return, may hurl abuse and threats at a school may be liable under the law many MEAA members working in the adequacy of existing offences in the and messages of all kinds.” up contact with the audience responding them – again, often under the protection of negligence on the basis of a non- media industry is of being regularly Commonwealth Criminal Code and to stories via mail or telephone. It could of anonymity. MEAA welcomes the delegable duty of care. subjected to harassment, abuse and threats of state and territory criminal laws to The development of social media even be as simple as talkback radio or opportunity to create a response to this on social media, where existing laws are capture cyberbullying.153 MEAA made a platforms has enabled those engaging letters to the editor. But the development growing problem. The report did not pay particular not enforced and where there are gaps in submission to the inquiry on December in hate speech to spread their message, of digital social media platforms has attention to the impact of cyberbullying the current legislative regime.” 21, 2017154 and appeared at a public call others together who share their introduced a new significant way for by adults and directed at adults although hearing in Melbourne on March 7, 2018. views and to use these platforms journalists and the audience to interact. n HARASSMENT the report did cite a submission from the n THE CRIMINAL CODE to target and discriminate against Social media has allowed individuals to MEAA noted that the inquiry stemmed Guardian media group concerning how The relevant section 474.17 contained a Women in Media, a MEAA networking individuals and groups. speak directly to journalists. in part from the Australian Law Reform cyberbullying affected journalists: penalty of up to three years imprisonment. and mentoring initiative, also made a Commission June 2014 final report: However, as the ALRC report found, there is submission and appeared at a public This change has been embraced by media Serious Invasions of Privacy in the Digital Guardian News and Media Limited and very little knowledge or understanding of hearing.155 n JOURNALISTS AND employers who now insist that their Age. In section 15 of the report focussing Guardian Australia submitted that it this section of the Code. SOCIAL MEDIA employees use social media platforms to on harassment, the report recommends would be preferable to introduce the MEAA’s submission began by noting MEAA members are required to promote and engage with audiences in action be taken about harassment, new privacy tort than modify existing MEAA believes that there is a great need its concern at the rise of hate speech engage with the public in numerous order to build traffic around digital news defining it this way: laws relating to harassment. Their for education in the broad community for in Australia. “For example, when Part ways. Initially, this is through stories. Indeed, the number of hits on a submission raises the concern that a the harm associated with cyberbullying IIA was introduced into the Racial contacting sources and recording news story has become a new and even Harassment involves a pattern of harassment tort does not involve a public and the penalties that can arise through Discrimination Act in 1995 it was them for a news story. somewhat oppressive key performance behaviour or a course of conduct interest balancing test, unlike the new section 474.17. CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 58 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 59

SOCIAL MEDIA COMPANIES CAN DEDICATE CONSIDERABLE EFFORT TO STAMP OUT MISINFORMATION

MEAA also believes that social media Facebook said on Wednesday that it was their attacks. Efforts should be made platform providers must take responsibility removing 99 per cent of content related to by social media platforms to “block” to ensure that their services are not used in militant groups Islamic State and al Qaeda cyberbullying offenders where they can such a way as to breach section 474.17. The before being told of it, as it prepared for be identified by the platform provider. proliferation of social media platforms and a meeting with European authorities on Obviously encryption and other masking the manner in which they are co-opted to tackling extremist content online. techniques can be utilised to obstruct become tools for the dissemination of hate attempts to locate and identify cyberbullies speech and “fake news” means they have This will require the substantial but vastly improved efforts should be made a responsibility to police their products in cooperation of social media platform to “take down” offensive communications order to ensure they are not being misused companies. But as the US example and block those responsible. as cyberbullying weapons. shows, the social media companies can dedicate considerable effort to stamp out “The consequences for violating our rules deliberate misinformation campaigns on vary depending on the severity of the n SOCIAL MEDIA PLATFORMS their platforms. They must also be called violation and the person’s previous record This debate around responsible operation of to account and respond to cyberbullying of violations. For example, we may ask social media platforms is already somewhat which is far more prevalent and easier for someone to remove the offending Tweet underway as leading social media platforms them to locate and identify. before they can Tweet again. For other address the spread of misinformation and cases, we may suspend an account.” – “fake news”, and interfere in the 2016 US “Freedom of expression means little if Twitter’s Hateful Conduct policy presidential election: voices are silenced because people are afraid to speak up. We do not tolerate The question arises whether merely “taking “What they did is wrong and we are not behaviour that harasses, intimidates, down” offensive material is sufficient and going to stand for it. You know that when or uses fear to silence another person’s whether the offences and penalties set out we set our minds to something we’re going voice. If you see something on Twitter that in Australian law are being ignored/side- to do it.” – Facebook CEO Mark Zuckerberg violates these rules, please report it to us. stepped by social media platforms. There on the Russian influence on the US You may not promote violence against or is a considerable body of circumstantial presidential campaign. directly attack or threaten other people evidence of victims of cyberbullying are on the basis of race, ethnicity, national dissatisfied with the efforts of social The acceptance by social media platforms origin, sexual orientation, gender, gender media platforms to take legitimate action that they have been responsible for identity, religious affiliation, age, disability to ensure the offending ceases and the spreading untruths and misinformation, or disease. perpetrators are punished in some fashion. and have allowed their products to become If the platforms are not willing to monitor failing that the Court system, can order the than an endorsement of their discrete There is little understanding of the harm tools to hijack and inflame debate through “We also do not allow accounts whose and police their product themselves and offending material be taken down, order contents. that cyberbullying can do by the broader deception and/or abuse, should also lead primary purpose is inciting harm towards provide proper protections for victims of an abuser to publish a correction and/or community and most likely little or no them to accept that they have a role as others on the basis of these categories. cyberbullying then the law of the land apology and order that a victim be given At an Australian State level, many of the knowledge of the substantial penalties that the carriers in question that are being Examples of what we do not tolerate should apply. the right of reply. Orders can also be made current regimes are deficient. For example, exist. harnessed to allow cyberbullies to spread include, but is not limited to, behaviour that content hosts to release the identity of in Victoria single incidents of cyberbullying Cyberbullying must be clearly defined and their harassment, menace and abuse. that harasses individuals or groups of anonymous abusers. The Act imposes fines do not constitute a “pattern” of behaviour, understood in order to stamp it out. people with: n ENFORCEMENT on individuals who breach any court orders and many of the current offences in existing Facebook plans to double the number of • Violent threats; Consideration must be given to ensure that in relation to the civil regime. legislation require criminal conduct to occur Education must also include reporting staffers focused on safety and security • Wishes for the physical harm, death, or the Criminal Code is upheld. in a “public space” (which may exclude mechanisms so that the victims of issues next year to 20,000, up from its disease of individuals or groups; Further, the Act criminalises online messages sent by direct message. cyberbullying can quickly flag an offender current headcount of 10,000, which the • References to mass murder, violent Moreover, there should be an examination abuse where a person intendeds a digital to both the social media platform and social network says includes its “partners”. events, or specific means of violence in of overseas jurisdictions to best inform communication to cause harm, it would State legislative regimes need to be enforcement agencies for follow-up action. which/with which such groups have been a robust approach to the problem. New reasonably expect the person in the examined so as to ensure existing laws are This should be done in cooperation with Social media carriage services must be the primary targets or victims; Zealand, for example, has enacted the position of the victim be harmed and being enforced and, where there are gaps, the Office of the eSafety Commissioner part of the solution to the cyberbullying • Behaviour that incites fear about a Harmful Digital Communications Act 2015. the individual suffers serious emotional these are filled by the introduction of new, and the Telecommunications Industry problem – both through education of protected group; This Act introduced a civil regime as well distress. more relevant and flexible offences. Ombudsman. their users, far greater monitoring efforts • Repeated and/or or non-consensual slurs, as criminal offences with regard to cyber to identify cyberbullies and take down epithets, racist and sexist tropes, or other abuse. The Act established a statutory body Criminal laws against cyber abuse also MEAA believes that our members, as offending content in an expeditious content that degrades someone.” known as Netsafe to administer the civil exist in a number of US jurisdictions. There n EDUCATION workers in the media industry, should manner; and cooperation with the - Twitter’s Hateful Conduct policy regime established under the Act. Under have been notable efforts in California, There will need to be considerable effort be able to work free from cyberbullying. authorities to “take down” cyberbullying this law, where a digital communication Washington, Utah and New York. We point on the part of enforcement agencies. But MEAA will be stepping up efforts with communications, securing evidence, and A great concern is how many cyberbullies breaches 10 communication principles to these statutes as symbolic of the gravity an accompanying education campaign media employers to ensure employers ensuring the prosecution of offenders. hide behind anonymity in order to mount that are set down in the Act, Netsafe, and of the issues before the Committee, rather must also educate the community at large. create and operate policies to protect CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 60 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 61

their staff, ensure they work in a safe If journalists are to be compelled n PUBLIC HEARING and healthy environment, that training to exist as easily identifiable digital AND THE COMMITTEE’S EFFORTS MIST BE INCREASE TO IDENTIFY AND and counselling regarding with dealing individuals on social media platforms RECOMMENDATIONS with cyberbullying is made available, and in order to perform their job, and have REPORT INSTANCES OF CYBERBULLYING that employers take steps to deal with that engagement measured as a key On March 28 2018 the Senate committee cyberbullies on behalf of their employees. performance indicator for their ongoing released its report. It noted that opinion employment, then greater care must columnist for Guardian Australia Van be taken to protect journalists from Badham, who gave evidence as a witness they must take responsibility for the care of In other recommended it suggested that This is partly due to cooperation from n SUMMARY cyberbullying. We stress here that if before the Committee’s Melbourne public participants within that.”157 the Government should: social media platforms. Given this, the It is clear that while section 474.17 exists, reforms are supported through this hearing on March 7, 2018 in her capacity as • Ensure that the Office of the eSafety committee does not think it is currently and offers penalties for cyberbullying, inquiry, that special care be taken in the Victorian vice-president of the MEAA The committee in its report recommended Commissioner is adequately resourced to necessary to increase the maximum civil it does not readily lend itself to defining journalists such that media Media section, had: the Australian Government consult fulfil all its functions, taking into account penalty that the eSafety Commissioner enforcement and is not widely known. practitioners not employed by major state and territory governments, non- the volume of complaints it considers; could apply. However, the committee As a deterrent, it is failing to keep media outlets are suitably protected. Quoted some extremely violent and vulgar government organisations, and other • Promote to the public the role of the remains deeply concerned about the pace with the widespread use of social tweets she has received following her public relevant stakeholders, to develop and Office of the eSafety Commissioner, continued prevalence of cyberbullying on media and digital technology generally In an era when threats to journalists are journalistic work. She stated that some of publicise a clear definition of cyberbullying including the cyberbullying complaints social media platforms.” which is being used as the platform and increasing (and not helped by politicians the men who sent these communications that recognises the breadth and complexity scheme; vehicle for the delivery of hate speech. who openly attack journalists and their to her had enough “confidence” to identify of the issue. • Consider improvements to the process The committee also recommended that the Cyberbullying can be executed in seconds employers using the phrase “fake news” themselves with their own names. by which the Office of the eSafety Australian Government monitor Germany’s with only a dozen or so characters or an to describe whatever they do not agree The inquiry said that Australian Commissioner can access relevant Network Enforcement Law and apply useful easily-sourced image. with), and dozens of journalists are She also linked trolling to physically violent governments should approach data from social media services hosted lessons “from Germany in Australia”. murdered, assaulted, imprisoned and incidents that she has also experienced: cyberbullying primarily as a social and overseas, including account data, that The bullying, abuse, harassment and harassed because of their journalism, public health issue and recommended that would assist the eSafety Office to The committee said social media platforms threats can go on relentlessly from government has a responsibility to …these things are creating a context Australian governments consider how they apply the end-user notice scheme, and “should play a major role in reducing there with the utmost ease and be uphold, protect and promote press where violence and harassment is spilling can further improve the quality and reach consider whether amendments to the cyberbullying” adding that it saw merit in a directed with precision to the intended freedom and the vital role of public over into real life. Effectively, I have been of preventative and early intervention Enhancing Online Safety Act 2015 relating proposal from Maurice Blackburn Lawyers target’s phone, tablet or laptop – at interest journalism. dehumanised on the internet and represented measures, including education initiatives, to the eSafety Commissioner and the to impose a statutory duty of care on social home or at work – 24 hours a day. And by these groups of people, sometimes quite both by government and non-government cyberbullying complaints scheme would media platforms to ensure the safety of because of the nature of social media The tools to arrest the growth of deliberately, in a way where they are incited organisations, to reduce the incidence of be beneficial, and in particular, consider their users. platforms and the encouragement they cyberbullying exist, but additional by others towards violence against my cyberbullying among children and adults. expanding the cyberbullying complaints give to others to “engage”, others can effort is needed. In this regard, MEAA person.156 scheme to include complaints by adults; The committee recommended the join in so that the abuse can swell and acknowledges the Law Council of It rejected calls to increase penalties for • Expanding the application of the tier Government legislate to create a duty of compound as others join the frenzy. Australia’s submission to the Inquiry The report added that Badham had also cyberbullying offences committed by scheme by amending the definitions care on social media platforms to ensure at points 9 (as to the range of conduct said about cyberbulling that: minors beyond the provisions already in of “social media service” and “relevant the safety of their users and consider In short, section 474.17 has not kept cyberbullying offences should capture), place. But it recommended that committee electronic service”, and increasing the requiring social media platforms to publish pace with the rise of offences it seeks 10 (the need for proportionality and This problem is “a workplace safety issue the Government consider increasing the basic online safety requirements for relevant data, including data on user to curtail and punish. The tools of distinctions between children and adult that affects women disproportionately…” maximum penalty for using a carriage social media services. complaints and the platforms’ responses, cyberbullying are readily available, offenders) and 18(a) (that the law be service to menace, harass, or cause offence as specified by the eSafety Commissioner easily used, allow for anonymous readily known and available, and certain and she had also under section 474.17 of the Criminal Code It also recommended the Government and in a format specified by the eSafety attacks and enable viral assaults. and clear). Act 1995 from three years imprisonment to “place and maintain” regulatory pressure Commissioner. Referred to a public event she attended five years imprisonment. on social media platforms to both prevent MEAA believes that while all members MEAA believes efforts must be with a male colleague, after which she and quickly respond to cyberbullying “The eSafety Commissioner’s cyberbullying of the community are affected by increased to identify and report “received 400 rape and death threats”, But the committee recommended that material on their platforms, including complaints scheme is a safety net hate speech, and as the ALRC has instances of cyberbullying, to educate while her male colleague did not Australian governments ensure that: through the use of significant financial and its existence does not reduce the acknowledged, children can be the community about the threats and receive any. • The general public has a clear awareness penalties where insufficient progress is responsibilities of Facebook, Google, particularly vulnerable to cyberbullying, penalties associated with cyberbullying, and understanding of how existing achieved. Twitter and their ilk. The committee is journalists are also regularly targeted. to ensure that the law is upheld and Badham also argued that social media criminal offences can be applied to deeply concerned about cases in which obeyed, and where necessary introduce platforms should be subject to a statutory cyberbullying behaviours; In its comments on this recommendation, social media platforms appeared to respond The media of itself is a powerful greater legislative protections (at both a legal action for, in effect, breaching their • Law enforcement authorities it stated: inadequately to complaints, and wishes to institution and public interest Commonwealth and State level) to assist duty of care: appropriately investigate and prosecute make it clear that it is up to social media journalism is vital to a healthy victims of cyberbullying. serious cyberbullying complaints “The committee acknowledges that the platforms to make their platforms safe functioning democracy. But the “… there has to be a duty of care. Coming under either state or Commonwealth services provided by social media platforms environments, reduce the incidence of requirements of modern journalism, This will require a coordinated effort by: from professional media anyway, legislation, coordinate their are very often beneficial for individuals and cyberbullying, and promptly take down or and the necessity for journalists to • Government, if a publication, The Guardian, The investigations across jurisdictions where society. However, these platforms are also otherwise manage all offending material. engage directly with their audience • Social media providers, Australian, Fairfax, if any of the major appropriate, and make the process a primary vehicle for serious cyberbullying. The committee considers ‘safety by design’ in order to market/promote their • Employers, and media organisations in this country clear for victims of cyberbullying, and The committee notes that civil penalties for a useful principle here.”158 journalism, leaves them particularly • Enforcement and regulatory agencies. were facilitating the harassment and ensure consistency exists between state, social media platforms are already in place, exposed to appalling and frequent abuse of individuals, they would be held territory and federal laws in relation to but the eSafety Commissioner has not yet attacks upon their character, judgment, A coordinated response that focuses on accountable. Social media are media cyberbullying. considered it necessary to apply them. professionalism and threats to their education, monitoring, reporting, and corporations. Facebook is effectively a physical safety. enforcement (including penalties as modern newspaper. So is Twitter. It has outlined in the Criminal Code) is urgently a pretty loose content policy, but those needed to address this problem. platforms exist as publication vehicles, and CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 62 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 63

DETENTION, THREATS AND HARASSMENT

The Pacific Freedom Forum said: The ABC issued a statement that said: his camera, scanned his passport and n POLICE RAID Documentary maker “Removing BBC journalists from Papua The ABC strongly rejects allegations warned him not to publish them. James Ricketson. Image On October 25, 2017 Queensland courtesy change.org provinces over such a tiny detail is proof made by Mr Michael Danby MP in a Police raided the offices of the ABC in that Indonesian security forces are still paid advertisement in the Australian He told Guardian Australia “when it Brisbane in an attempt to identify the acting outside the law… Papua people Jewish News that the coverage by ABC was clear last time that they could not source of leaked Cabinet documents. have suffered decades of free-speech Jerusalem correspondent Sophie McNeill get the photos back off me, they said to loss, to tragic result – half a million of a series of killings of Palestinians and of me: ‘If you publish these photographs MEAA chief executive Paul Murphy documented deaths in half a century. Jewish Israelis on 21 July was biased and you are never going to come back here’. said: “The role of the media in a We then have a free-speech farce with unbalanced. There’s a total double standard being healthy democracy is to scrutinise Indonesia hosting World Press Freedom applied… journalists that are doing those in power. The execution of a Day last year – but officially ignoring Contrary to Mr Danby’s assertion, positive work and non-critical work are search warrant to hunt for leaked Papua. This deportation from Papua just Ms McNeill gave due prominence to being allowed in whereas people who are Cabinet briefing documents is a adds to the farce.”164 the fatal stabbing attack of the three doing critical work are stopped.” belated attempt to pursue journalists’ Israelis with stories on television, radio, sources rather than address the News Digital and Twitter. The coverage MEAA chief executive Paul Murphy said matters raised in the legitimate n SOPHIE MCNEILL included graphic accounts of the attack of the incident: “It really is an affront journalism by two ABC reporters. from witnesses and first responders. to press freedom and an affront to our rights as Australian citizens to prevent “Three stories have been written about This advertisement is part of a pattern independent media coverage of the deep budget cuts to Queensland’s of inaccurate and highly inappropriate situation on Manus Island at any time, environment department under Authorities also seized his laptop n REBECCA HENSCHKE personal attacks on Ms McNeill by Mr but particularly at the moment when the LNP Government in 2012. Now, and translated documents and Rebecca Henschke is an Australian Danby. The ABC has complete confidence there quite clearly is a serious and Queensland Police are seeking to emails found on it. journalist and the bureau chief of in the professionalism of Ms McNeill. disturbing situation that is continuing find the source of the leak by raiding BBC Indonesia. She was reportedly Despite unprecedented scrutiny and to develop. These things are being done a newsroom in the hunt for what are He faces up to 10 years in jail expelled from the province of Papua obvious pre-judgement by Mr Danby and in our name and as citizens we have a presumably journalists’ confidential if convicted. He has denied the for her social media posts that angered others, her work has been demonstrably right to independent scrutiny of what’s sources,” he said. allegations. He has been denied bail. the Indonesian military. The ABC accurate and impartial. happening there.” He has been detained in a cell with reported: “Authorities said… “MEAA calls on Queensland Police 140 other prisoners. Henschke was escorted out of the All ABC News content is produced in Murphy said the suggestion that Abbott to cease this attack on press freedom province after her social media posts Michael accordance with ABC editorial policies had been blacklisted because his work and pursue its investigations among Ricketson was known to be making ‘hurt the feelings of soldiers’.”163 Danby MP and under the supervision of experienced was critical of the detention centre Queensland’s politicians rather than a documentary about Cambodia’s editorial managers.166 regime was particularly concerning. “Any seek to shoot the messenger and a political opposition leader Sam Rainsy. Foreign journalists had been given evidence of government control and likely whistleblower that was seeking He has previously worked with several access to Papua in order to report on On October 5, 2017, MEAA condemned intervention in determining who gets to to reveal important information to child protection bodies in the country a measles and malnutrition crisis near the use of public funds by Labor MP n MATTHEW ABBOTT report, what can be reported, and when the community,” Murphy said.159 as well as blogging about various the southern coast town of Agats. Michael Danby to publish attack ads, On November 3, 2017, photojournalist it’s reported is absolutely repugnant. It’s issues in the region. According to an Henschke was reportedly detained that were inaccurate and inappropriate, Matthew Abbott was detained by not something you would expect to see ABC report: “He has also been a vocal after she posted several tweets on targeting ABC Jerusalem correspondent immigration officials at Port Moresby in a liberal democracy.”168 n JAMES RICKETSON critic of Prime Minister Hun Sen, who February 1, 2018. One showed a photo Sophie McNeill. Airport after they identified him as James Ricketson is a 69-year- has ruled Cambodia for 32 years. In a of supplies sitting on a dock and said, having published “disruptive material” old documentary maker. On 2014 blog post, Mr Ricketson compared “This is the aid coming in for severely MEAA noted that McNeill is a three-time about Manus Island. June 2, 2017 he was detained by Mr Sen to the Star Wars villain, Darth malnourished children in Papua – winner of a Walkley Award for Excellence Cambodian authorities after he was Vader. He had also blogged about instant noodles, super sweet soft drinks in Journalism – winning two of those “It was clear that I was on a list and photographed flying a drone over Australia’s refugee resettlement policy and biscuits.” Another said “children in awards in 2016 for her coverage of wars there was no chance I was getting into a political rally in Phnom Penh160. and staged a one-man sit-in protest hospital are eating chocolate biscuits in Syria and Yemen. the country,” he said.167 He was detained for six days – well at Screen Australia that resulted in a and that’s it”. beyond the 72-hour rule under restraining order. In 2014 and 2016, he MEAA CEO Paul Murphy said: “It is He had been attempting to apply for Cambodian law – and on June 8 was convicted in Cambodian courts of An Indonesian military spokesman appalling that a politician can use a tourist visa and was intending to go he was subsequently charged with defaming two separate child protection said: “The tweet is not in line with the public money to mount personal to the decommissioned Manus Island “receiving or collecting information, organisations.”161 truth… What was captured in the photo attacks against an individual reporter. asylum seeker detention centre to report processes, objects, documents, of the speedboat dock is the supplies It is particularly repugnant that those on conditions when the scanning of computerised data or files, with a Ricketson’s adopted daughter from merchants who happened to be in funds are used against a journalist his passport triggered an alert to an view to supplying them to a foreign Roxanne Holmes set up a petition162 that place.” who has reported from some of the immigration officer. state or its agents, which are liable to to put pressure on the Australian most dangerous war zones and been prejudice the national defence”. government to do more to get him Henschke was questioned for five repeatedly recognised by her peers for The “disruptive material” is believed to out of jail and MEAA has encouraged hours, held by immigration officials her outstanding work. This is not how refer to an incident that occurred at the members and the public to support for a further 24 hours before being an MP’s electorate allowance should be detention centre in July 2017 when he the campaign. The petition attracted escorted out of Papua with her BBC used. Michael Danby should repay the photographed the aftermath of an attack almost 72,000 signatures. colleagues and returning to Jakarta. funds to taxpayers.”165 on two Afghan refugees. Camp officials attempted to delete the photos from CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 64 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 65

IMPUNITY perhaps the government would like the book to be completely closed but I think n November 2, 2017 – UNESCO’s The remaining eight cases, the bulk n THE BALIBO FIVE AND there are many chapters still to write, there International Day to End of which date back to the Indonesian ROGER EAST are many unknowns.”176 Impunity for Crimes Against invasion of East Timor in 1975, are a sorry OJournalists – the global body tale of ongoing government indifference, Journalists Brian Peters, Malcolm Rennie, Roger East was a freelance journalist on reported that between 2006 and 2016, 930 and an apparent unwillingness to Tony Stewart, Gary Cunningham and assignment for Australian Associated Press journalists were killed for bringing news thoroughly investigate the murder of Greg Shackleton were murdered by when he was murdered by the Indonesian and information to the public. Over that Australian journalists. Indonesian forces in Balibo, East Timor, military on the Dili wharf on December 8, time, a conviction had been achieved in on October 16, 1975. 1975. MEAA believes that in light of the less than one in 10 cases.”169 The impunity over the murder of evidence uncovered by the Balibo Five journalists is a growing global issue. For On November 16, 2007, NSW Deputy inquest that led to the AFP investigating a “This impunity emboldens the perpetrators Australia to join the ranks of nations that Coroner Dorelle Pinch brought down a war crime, there are sufficient grounds for a of the crimes and at the same time has treats journalist lives so cheaply should finding in her inquest into the death of similar probe into Roger East’s murder and a chilling effect on society including be a source of shame, particularly as Peters. Pinch found that Peters, in company that similarly, despite the passage of time, journalists themselves. Impunity breeds Unesco reports that many other countries with the other slain journalists, had “died the individuals who ordered or took part impunity and feeds into a vicious cycle… have stepped up their efforts to stamp at Balibo in Timor Leste on 16 October, in East’s murder may be found and finally These figures do not include the many out impunity and bring the killers of 1975 from wounds sustained when he The Balibo Five, from left to right - Gary Cunningham, brought to justice. died aged 27; Brian Peters, died aged 24; Malcolm more journalists who on a daily basis journalists to justice. was shot and/or stabbed deliberately, and Rennie, died aged 29; Greg Shackleton, died aged 29; suffer from non-fatal attacks, including not in the heat of battle, by members of Tony Stewart, died aged 21. Left: Roger East, died However, given the unwillingness to pursue torture, enforced disappearances, arbitrary To do nothing, as has been the case to the Indonesian Special Forces, including aged 53. Photo: courtesy Balibo House Trust the killers of the Balibo Five, MEAA does detention, intimidation and harassment in date, means that their killers are getting Christoforus da Silva and Captain Yunus not hold out great hope that Australian both conflict and non-conflict situations. away with murder and sends a signal Yosfiah on the orders of Captain Yosfiah, to “It makes a mockery of the coronial inquest authorities will put in the effort to Furthermore, there are specific risks faced that the Australian Government and its prevent him from revealing that Indonesian for so little to have been done in all that investigate East’s death. Again, it is a case by women journalists including sexual agencies treat the lives of Australian Special Forces had participated in the time. This shameful failure means that the of impunity where, literally, Roger’s killers attacks.170 journalists as counting for less than other attack on Balibo. killers of the Balibo Five can sleep easy, are getting away with murder. Australians. comforted that they will never be pursued “When attacks on journalists remain “There is strong circumstantial evidence On October 13, 2014, three days before the for their war crimes, never brought to MEAA continues to call for a full and unpunished, a very negative message is n JUANITA NIELSEN that those orders emanated from the Head anniversary of the murder of the Balibo justice and will never be punished for the proper war crimes investigation. sent that reporting the ‘embarrassing of the Indonesian Special Forces, Major- Five, was reported172 that the AFP took murder of five civilians. Impunity has won truth’ or ‘unwanted opinions’ will get General Benny Murdani to Colonel Dading “seven months to advise the Senate that out over justice.”175 MEAA has honoured the memory of the ordinary people in trouble. Furthermore, Juanita Nielsen Kalbuadi, Special Forces Group Commander ‘an active investigation’ into the murder of Balibo Five and Roger East with a new society loses confidence in its own in Timor, and then to Captain Yosfiah.” the Balibo Five was ongoing”. The AFP says In a letter to MEAA on April 15, 2015, the fellowship in their name, in conjunction judiciary system which is meant to protect the investigation has “multiple phases and AFP’s Deputy Commissioner Operations with Union Aid Abroad-APHEDA with everyone from attacks on their rights. In the more than 40 years since this results are still forthcoming from inquiries Leanne Close said: “As stated by the AFP MEAA providing the bulk of the funding Perpetrators of crimes against journalists incident Yunus Yosfiah has not lived in overseas.” However, the AFP stated that Commissioner during the last Senate and additional funds being received from are thus emboldened when they realize obscurity. He rose to be a major general in it had “not sought any co-operation from Estimates hearing on November 20, 2014 the Fairfax Media More Than Words they can attack their targets without ever the Indonesian army and is reportedly its Indonesia and has not interacted with the the AFP has now completed an extensive workplace giving program, and private facing justice. most decorated solider. He was commander Indonesian National Police”.173 review of the investigation into the deaths donations. The fellowship sponsors travel, of the Armed Forces Command and Staff of the ‘Balibo Five’. It has been determined study expenses and living costs for East “Society as a whole suffers from impunity. College (with the rank of Major General) Just six days later, on October 21, 2014 the there is insufficient evidence to support Timorese journalists to develop skills and The kind of news that gets ‘silenced’ is and Chief of Staff of the Armed Forces Australian Federal Police announced it was providing a brief of evidence to the training in Australia. exactly the kind that the public needs to Social and Political (with the rank of abandoning its five-year investigation due office of the Commonwealth Director of know. Information is quintessential in Sydney journalist and editor Juanita Lieutenant General). He was chairman to “insufficient evidence”.174 Public Prosecutions for consideration for The 2017 recipients of funding from the order to make the best decisions in their Nielsen, disappeared on July 4, 1975. of the Armed Forces Faction in the prosecution under Australian law.” fellowship are: lives, be it economic, social or political. Nielsen was the owner and publisher Indonesian National Assembly. He retired MEAA said at the time: “Last week, the AFP • Maria Pricilia Fonseca Xavier, a journalist This access to reliable and quality of NOW magazine. She had strongly from the army in 1999. He is also a former admitted that over the course of its five- On October 15, 2015 the son of Gary and news broadcaster in Tétum and information is the very cornerstone of campaigned against the development minister of information in the Indonesian year investigation it had neither sought Cunningham, John Milkins, said he wanted Portuguese at Timor-Leste Television democracy, good governance, and effective of Victoria Street in Potts Point, in the government of President Bacharuddin Jusuf any co-operation from Indonesia nor had more information about why the AFP (TVTL). institutions.”171 electorate of Wentworth, where she lived Habibie. it interacted with the Indonesian National had decided to close the investigation. “I • Augusto Sarmento Dos Reis, senior and worked. Police. The NSW coroner named the alleged would be pleased to see it reopened. I feel sports journalist and online co-ordinator Australia has nine cases of journalists Two years after the inquest, on September perpetrators involved in murdering the it was closed without an explanation to at the Timor Post daily newspaper who have been killed with impunity. All As recently as August 2014, NSW Police 9, 2009, the Australian Federal Police Balibo Five in 2007. Seven years later the the Australian public.” Milkins added: “We and diariutimorpost.tl website. but one of the cases involve a journalist forensics dug up the basement of a former announced that it would conduct a war AFP has achieved nothing. don’t think that story’s finished. I think working in a conflict zone overseas. The Kings Cross nightclub in an attempt to crimes investigation into the deaths of the sole domestic case, of Juanita Nielsen, locate her remains but were unsuccessful. five journalists. Little was ever disclosed remains unsolved despite considerable While there have been convictions over about how the investigation was being attempts by police forces to find her body her abduction, no formal homicide charges conducted, what lines of questioning were and to bring homicide charges against her have been brought and her remains have being pursued, what evidence had been THIS SHAMEFUL FAILURE MEANS THE KILLERS murderers. never been found. gathered or whether the families were OF THE BALIBO FIVE CAN SLEEP EASY being kept informed of the AFP’s progress. CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 66 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 67

n PAUL MORAN n TONY JOYCE and effective investigations into all alleged Paul Moran violence against journalists and media Tony Joyce THE ASIA-PACIFIC workers falling within their jurisdiction and to bring the perpetrators of such crimes to justice and ensure that victims have access PRESS FREEDOM IN NEW ZEALAND to appropriate remedies’.” BY COLIN PEACOCK On April 15, 2015, the AFP’s Deputy Commissioner Operations Leanne Close replied to MEAA’s letter saying that there ew Zealanders are too was insufficient information available to “ complacent about the justify an investigation under section 115 continuing erosion of their of the Criminal Code Act 1995 (Harming Nright to know what the Paul Moran, a freelance cameraman Australians) and that despite the new government is doing on their behalf,” on assignment with the Australian information on Krekar’s movements, AFP wrote Gavin Ellis in an anguished essay, Broadcasting Corporation to cover the would not be taking any further action. Complacent Nation, in 2016. Iraq war, was killed by a suicide bomber on March 22, 2003 leaving behind his On February 20, 2015, in the aftermath What was the former editor in chief of wife Ivana and their then seven-week-old of the massacre in Paris of journalists, ABC foreign correspondent Tony Joyce New Zealand’s biggest newspaper - New daughter Tara. editorial and office staff at the Charlie arrived in Lusaka on November 21, 1979 to Zealand Herald - worried about? New Hebdo magazine, it was reported that report on an escalating conflict between Zealand ranked fifth in the world in the Paul was the first media person killed in Krekar had been arrested for saying in an Zambia and Zimbabwe. While travelling by 2016 Reporters Without Borders press the 2003 Iraq war. interview that when a cartoonist “tramples taxi with cameraman New Zealander freedom index behind only Finland, on our dignity, our principles and our Derek McKendry to film a bridge that had Netherlands, Norway and Denmark. The attack was carried out by the group faith, he must die”. It is believed Krekar been destroyed during recent fighting, Ansar al-Islam — a UN-listed terrorist was subsequently arrested on a charge of Zambian soldiers stopped their vehicle In last year’s press freedom report, arm of al-Qaeda. According to US and “incitement”.177 and arrested the two journalists. I noted that the most recent matter Cartoon by Sharon Murdoch; cartoonist for Stuff (formerly Fairfax Media NZ) @domesticanimal UN investigations, the man most likely worrying New Zealand’s Media Freedom responsible for training and perhaps even Krekar was arrested in prison in Norway The pair were seated in a police car when a Committee was a clause in a proposed directly ordering the terrorist attack is Oslo on November 11 “in a coordinated police suspected political officer with the militia law that would make it an offence to information requests will be met and on controversial spy software produced resident Najmuddin Faraj Ahmad, better swoop on Islamist militants planning reached in through the car’s open door, record a rocket or spacecraft that might successive governments have allowed by secretive Silicon Valley firm Palantir. known as Mullah Krekar. He has escaped attacks”. The raids across Europe targeted raised a pistol and shot Joyce in the head. crash here. Not exactly on a par with free speech rights to be overridden,” said “The Defence Force neither confirms nor extradition to Iraq or the US because Krekar and 14 other Iraqi Kurds and one the worries about laws criminalising Reporters Without Borders. denies the existence or non-existence of Norway resists deporting anyone to non-Kurd. Authorities allege the men were Joyce was evacuated to London, but journalism on national security grounds the information you have requested,” it countries that have the death penalty. involved in Rawti Shax – a group spun-off never regained consciousness. He died in Australia these days… The chair of New Zealand’s Media wrote citing national security, when the from Ansar al-Islam, that has alleged links on February 3, 1980. He was 33 and was Freedom Committee at the time, Joanna Herald first requested the information Krekar had been imprisoned in Norway, to ISIL. Authorities allege it is a jihadist survived by his wife Monica and son In February this year, global anti- Norris, agreed. “(There is) consistent and last January. guilty of four counts of intimidation network led by Krekar. Investigators claim Daniel.178 corruption watchdog Transparency cynical misuse of official information under aggravating circumstances. He was Krekar pledged allegiance to ISIL in 2014. International rated New Zealand the least laws which are designed to assist the But the NZDF itself reported the released from prison on or around January MEAA hopes that, despite the passage corrupt country in the world – again. Eat release of information, but are often used relationship with Palantir in its own 20, 2015. It was revealed that he would be In mid-March 2016 Norwegian media said of time, efforts can be made to properly that Finland, Netherlands, Norway and to withhold it,” she said. publication Army News. A December sent into internal “exile” to the village of Krekar had been released from jail after investigate this incident with a view to Denmark. 2015 briefing on its website details use of Kyrksaeteroera on the coast, south-west of a court found him not guilty of making determining if the perpetrators can be It’s not a new concern. Palantir’s analytical tools. Trondheim. Krekar would have to report threats. His lawyer said Krekar will seek brought to justice. Does our relatively free media mirror our regularly to police and would stay in a compensation. relatively benign, uncorrupted society? Using the hashtag #Fix the OIA, After refusing for more than a year refugee centre. Kiwi journalists routinely vent their to reveal the extent of links to the On November 23, 2016 the Norwegian Partly. frustration on social media. Sometimes company, the Herald complained to the On February 10, 2015 MEAA wrote to Police Security Service arrested Krekar in they share pictures of the heavily Ombudsman and the NZDF was forced to Justice Minister Michael Keenan and AFP order to secure his extradition to Italy. But But Transparency International’s New redacted documents dotted with black disclose the spending. Commissioner Andrew Colvin once more, on November 25 it was reported that Italy Zealand chair Suzanne Snively echoed blocks they’ve received in response to stating: “We are deeply concerned that if had withdrawn its extradition claim, and Gavin Ellis when she said “complacency their requests. All too often they’ve Back in 2014, former prime minister John those responsible for killing Paul are not Krekar was released. (is) our biggest challenge. The prevention had to wait far too long to get them Key said he’d resign if it was proved he brought to justice then they are getting of corruption is too often a low priority”. for reasons that are rarely adequately had presided over the mass surveillance away with murder. In mid-January 2018, an anticipated Italian explained. of New Zealanders. trial of Krekar and five others (including Our complacency was jolted this past year “You would be aware that the United Krekar’s son in law) was subsequently when New Zealand slipped to 13th place Media management plays a big part in At an event called The Moment of Truth Nations General Assembly has adopted delayed again as Krekar and his lawyers in the Reporters Without Borders press this. Delays take the sting out politically in the run-up to the election, the US Resolution A/RES/68/163 which urges had not been notified. Under Italian law, a freedom index, citing government secrecy sensitive and newsworthy details. National Security Agency whistleblower member states to: ‘do their utmost to hearing can take place if the defendant is and journalists’ struggles with the Official Edward Snowden revealed the existence prevent violence against journalists and not present but the delay is believed to have Information Act (OIA) as the reason for In April 2018, the New Zealand Herald’s of Project Speargun – a plan to intercept media workers, to ensure accountability been granted to allow formal notification to the plunge. “Political risk has become a Matt Nippert revealed the New Zealand internet traffic in and out of New through the conduct of impartial, speedy be provided to Krekar’s lawyers. primary consideration in whether official Defence Force (NZDF) has spent millions Zealand. John Key rubbished the claims. CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 68 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 69

He said he personally put a stop to this Sometimes this blatant gaming of the The agencies involved are the Ministry “highest form of protection” in March 2013 OIA by officials is itself revealed in the for Culture and Heritage, the Ministry THE NEW GOVERNMENT IS EXPLORING IF THE LAW NEEDS TO because it was too intrusive. documents eventually released using for the Environment, the Department of Investigative reporter David Fisher its powers. Transport minister Simon Conservation and Land Information New BE STRENGTHENED TO PROTECT WHISTLEBLOWERS eventually acquired official documents Bridges’ office discouraged the release Zealand. showing Speargun actually continued of a report about a proposed rail link to after the time Key said he ordered a Auckland. The national rail company He says the outcome of the investigations halt.“Speargun wasn’t actually stopped KiwiRail advised there was no case to will be released in 2018 “to provide heart of his lid-lifting book Dirty Politics. on a confidential basis. The changes make wrongdoing needs to have faith that their until after Key was told in a secret briefing withhold it from the public, but emails the public with continuing trust and Using the recently beefed-up Search and it easier to people to make a “protected role, reputation, and career development that details were likely to become public eventually released under the OIA last confidence in public sector agencies, Surveillance Act, police seized and copied disclosure” to the Inspector-General of will not be jeopardised when speaking because they could be in the trove of June revealed how Bridges’ office pushed and to outline the standards to which documents and computers, including Intelligence and Security. But those who up,” the State Services Minister has said. secrets taken by NSA whistleblower Edward back against the release all the same. government agencies should aspire”. those belonging to his daughter. They pass information to journalists may face Snowden,” he reported last December. also asked private companies for details up to five years in jail. Let’s hope any change to the Protected Reporters of local politics are familiar But will Jacinda Ardern’s new Labour- of his phone, online accounts and his Disclosures Act 2000 recognises a role for It took almost three years to get the with this too. The Local Government led government bring new management travel and banking records. The raids and This has yet to be tested, but it will be a the media and protects people who pass information he needed. John Key had left Official Information and Meetings to the OIA? It has appointed a minister breaches of his privacy were eventually brave member of the intelligence services on information to them where the public politics by the time his story came out. Act requires local bodies to provide – former journalist Clare Curran – deemed unlawful and followed by who leaks information on that basis. interest is in play. Victoria University information unless there is a sufficiently who says she wants to fix it. With her apologies and out-of-court settlements. Journalists will also have the added worry of Wellington professor Michael Toby Manhire of independent news good reason not to, but resistance for overlapping responsibilities for media and of possible prosecution themselves if Macaulay has noted some Australian website The Spinoff, hit the nail squarely political purposes is commonplace. In broadcasting as well as open government During the 2017 election it was New pressed to reveal sources. state governments already support on the head: “What a shame it would be if March, Radio New Zealand’s reporter and digital services, this is promising. Zealand First Party leader Winston whistleblowers who contact journalists the lesson of all this was that all you need Tod Niall revealed a letter to Auckland Peters – now the Deputy PM – who went Journalist can also be jailed for contempt in some situations. For example, the do is waste enough time until everyone mayor Phil Goff which said the release of But before she could get her feet under legal. He launched proceedings for a of court if they jeopardise a fair trial. A New South Wales government protects has something else to worry about.” information should be delayed so it could the table, the new government made a breach of privacy against two journalists classic case of freedom of expression people who contact the media if they be “managed”. bad start. It is a coalition government who reported that he had been paid too versus the right to a fair trial unfolded have not had success having their “honest Another case in point was the “Saudi formed only after delicate and secret post- much superannuation. Peters’ tried to in 2008 when a chief editor and a senior concerns” properly investigated by a sheep scandal” in which former foreign The letter was withheld from RNZ for election negotiations. Its leaders refused get them to hand over several months executive from Fairfax Media were in the relevant higher authority. minister Murray McCully was accused 15 months despite intervention by the to release a document with directives of their telephone records, documents dock for publishing details of police raids of improperly using $NZ11.5 million of Ombudsman. If the idea is to create “news for new ministers, despite Deputy Prime and notes as part of the proceedings carried out for the first time under new When asked why New Zealand had taxpayers’ money to curry favour with a that is so old it is not news any more” as Minister Winston Peters’ promise it would targeting whoever was responsible for post-9/11 anti-terror laws. In the end a slipped from its fifth place on the well-connected Saudi businessman. The Tod Niall put it, it works. “And that is why be made public. leaking the private information at the judge found that publication jeopardised World Press Freedom Index in 2017, the money was for a sheep farm, but ewes it matters,” he added. heart of the story. a fair trial for those charged with firearms chair of New Zealand’s Media Freedom sent by air from New Zealand were dead Clare Curran’s position as a minister is offences in those raids. Committee at the time, Joanna Norris, on arrival. In the absence of an upper house, already under scrutiny after the revelation Worryingly, New Zealand’s watchdog said the accelerating financial woes of New Zealand’s Official Information Act of an “informal meeting” with a Radio Media Freedom Committee, which A Bill to tidy up the law on contempt the news media were the biggest concern. By the time the details finally emerged this is an essential check on the power of New Zealand executive which raised represents the country’s major news of court is now before Parliament “(A) challenge which threatens to past year via the OIA, the story was as dead government – especially the power wielded questions about government interference organisations, was caught out. Its chair and it could introduce heavy fines for undermine media freedom is the actual as the sheep. Again, the former minister by 20 cabinet ministers in its executive with the public broadcaster. Not a good Joanna Norris had just left the media breaches. When the New Zealand Law sustainability of professional journalism, had retired from politics in the interim. branch. The Act was hailed as world- look for a minister of open government, and replacement had not yet stepped Commission launched a review of the which is costly and becomes increasingly leading in 1982, but journalists say it has the pundits pointed out en-masse. up when the case arose. After a hasty law last August no reporters turned up. hard to support as revenues decline or Investigative journalist and author Nicky suffered with each new administration new appointment, the Committee’s new Only a handful of stories signalling the shift to offshore giants,” she said. Hager – who has exposed several political since it became law. Initially applied chair Miriyana Alexander said journalists changes were published. scandals in the past – has also had to rely on with gusto and with principle, the next n JOURNALISTS CAUGHT IN had a fundamental right to protect their Her employer Fairfax Media New Zealand the Ombudsman who can compel officials government did so only adequately, the ELECTION-YEAR CROSSFIRE sources, and should be free to do their But statutory take-down powers for (since rebranded as Stuff) was seeking to comply with the OIA. As a result, the next reluctantly, according to lobbyist and In the white heat of election campaigns job of informing the public without courts to order temporary removal of clearance to merge with NZME (New NZDF has been forced to admit that the media pundit Matthew Hooton. gone by, politicians have called in the interference and intimidation from potentially prejudicial online material Zealand Media and Entertainment), the locations of the photographs in the book lawyers or even the cops on journalists politicians. Peters eventually excluded could land the media in hot water. The only other major newspaper publisher Hit & Run by Hager and Jon Stephenson After that, the Labour-led government doing their jobs. the journalists from his proceedings, Law Commission proposed new public in New Zealand. Between them, they published a year ago were accurate, contrary did so “disgracefully” in the early 2000s, which also targeted several politicians. interest defence where “the publication would corner 90 per cent of the nation’s to what it had said at the time. he says, while the subsequent National- Camera operator Bradley Ambrose was was in good faith made as a contribution shrinking but still profitable newspaper led government of 2008-2017 “abused it investigated by police – and newsrooms But it’s not the first time Peters has taken to or part of a discussion of public market. They would have a similar The NZDF’s chief, Lieutenant-General shamelessly”. were searched by police officers – after legal action against the media and there affairs or matters of general public dominance of the audience for New Tim Keating, had cast doubt on the his remote microphone recorded a is at the least a chilling effect from his interest”. That could be in the media’s Zealand news online, though the likes of veracity of the whole book – which A new chief Ombudsman seems conversation between Prime Minister John heavy-handed response. Reporters and interest, but it’s not in the Bill before Google and Facebook harvest the bulk of alleged the SAS botched a raid on two more willing to force the release of Key and another political party leader their editors who publish stories about parliament as it stands. the advertising income from that. isolated Afghan villages in 2010 and unjustifiably withheld information and in 2011. Ambrose pursued a defamation Winston Peters which he might not like killed civilians – by claiming there were address complaints – many of them claim against Key which was settled years will know that they could be dragged in The new government is also exploring “The debate in relation to the “major inaccuracies” in it, with the main from journalists – more rapidly. Peter later out of court – with an apology. to a legal battle which could even make whether the law and procedures to proposed merger between local media one being the names and location of the Boshier has also started naming and them liable for costs. protect whistleblowers at work need companies has been a useful and critical villages. (The New Zealand government is shaming government departments Investigative reporter and author Nicky to be strengthened. “It is crucial that conversation to help New Zealanders likely to launch an official inquiry into the dragging the chain. He has just launched Hager had his home raided in the 2014 In 2017 a new law overhauling powers of employees feel safe to report cases understand the role and value of strong matter shortly) four investigations into the official campaign by police officers wanting spy agencies created a new offence for of serious misconduct. Anyone who New Zealand-based media,” Norris said. information practices of the public sector. the source of the leaked emails at the people passing on classified information raises issues of serious misconduct or Without a merger, “journalism at CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 70 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 71

The final edition of the Cambodia Daily, which ceased publication after over 20 years in September scale” in New Zealand’s regions was at PRESS FREEDOM IN 2017 following the immediate risk, she warned. government crackdown on press freedom. THE ASIA-PACIFIC Image courtesy Socheata Greg Hywood, the chief executive of Hean the Fairfax Media parent company in Australia, was more dramatic. He said A MOUNTING CRISIS it would “become end-game” if the ACROSS THE REGION merger was disallowed. “We don’t have BY ALEXANDRA HEARNE the capacity of deep pockets of private money to subsidise journalism,” said Hywood. n ASIA-PACIFIC Over the past 12 months, the situation for the media in Afghanistan has become TOTAL KILLED: 39 But in May 2017 the Commerce increasingly precarious with authorities Commission, New Zealand’s competition AFGHANISTAN: 22 able to do little to protect them. Suicide watchdog, declined permission to bombs and attacks are fast becoming a INDIA: 8 merge. The Commission said plurality threat to the media as the general safety and diversity of opinion would shrink PAKISTAN: 6 situation deteriorates. – and that outweighed the economic PHILIPPINES: 3 benefits to the company. The decision Rural journalists are also facing growing was announced on UNESCO World Press While the brutal killing of journalists in threats as the Taliban tries to recapture Freedom Day, May 3. the Asia Pacific remains a dire concern for territory in the region, often targeting the International Federation of Journalists journalists for their reporting. Since The prospective merger partners (IFJ), it is just one of the tools of repression the attack on TOLO News in early 2016, funded democracy advocates, jailed human 200 media violations, including enforced Internet shutdowns, particularly at times are challenging the decision – at that are increasingly working in overdrive the Taliban has become more brazen, rights defenders and journalists and used disappearances, televised confessions, of civil strife and in regions of conflict, considerable expense – in the Court of in the region to silence the media. increasing their threats to the media. the courts to dissolve the country’s main online shutdowns, media directives and are becoming the government’s latest tool Appeal in June 2018. If they succeed, Governments, state actors and radical Radio stations are being attacked and opposition party. self-censorship. to suppress the flow of information. In the two companies may get the extra groups are increasingly targeting the media burnt, TV stations have been raided and the past 12 months, the internet in India “runway” they say they need to establish and journalists, creating a culture of fear staff taken hostage, while journalists The ongoing persecution of freedom of There are currently 29 media workers jailed has been shut down more than 80 times. a profitable digital era business model. and intimidation and restricting the flow of on assignment have had their vehicles expression and the independent media in China, a further nine are in custody, six In August, the government ordered the They insist they remain committed to information. targeted in suicide blasts. saw at least 18 radio stations forced off are on bail and two are on probation, and shutdown of 22 social media services in journalism and publishing, but that the air in August, as local radio stations the status of a further 12 is unknown. The Kashmir for a minimum of one month, in model would employ fewer journalists n AFGHANISTAN n CAMBODIA were forced to stop leasing time to the oldest case that the IFJ recorded is that of attempts to curb protests and violence in than the two companies do now and Impunity is continuing to cripple The situation in Cambodia over the past US-funded Radio Free Asia and Voice of Ekberjan Jamal, a Xinjiang blogger who was the region. accelerate the “revenue diversification” Afghanistan’s media. Since 1994, 73 12 months has quickly deteriorated. Hun America. It is estimated that as many as 50 charged with “splittism” in February 2008, strategies: sidelines in insurance, video- journalists and media workers have been Sen’s government stepped up its attacks jobs were lost immediately. and sentenced to 10 years in jail. Online harassment also remains a growing on-demand, retailing broadband and killed in Afghanistan. In two years, since on its political opposition, human rights concern for the media, particularly female events. the Afghan Ministry of Interior Affairs defenders and the country’s independent This was followed up with the closing The death of Liu Xiaobo in 2017 sparked journalists. Harassment and online trolling started investigating 172 cases of violation media. It closed down radio stations, forced of The Cambodia Daily after 25 years in international outrage. Liu was in jail are making the online space unsafe, In other words, the single slimmed- of journalists’ rights, there has been no an independent newspaper to shut under production. The Daily was forced to close for “inciting subversion” when he was with reports of death and rape threats, down company would dominate daily practical action for justice. threats of a massive tax bill, expelled US- after the government hit the outlet with a diagnosed with stage- four liver cancer. He intimidation and continued harassment news in print and online, yet journalism $US6.3 million tax bill, and 30 days to pay. was granted medical parole, but died only becoming all too regular. For more than would not be its bread and butter. The weeks after his diagnosis. two months, Chennai-based freelance word “news” no longer features in the The Afghanistan Independent Journalists The government-led crackdown culminated journalist Sandhya Ravishankar received current names of either company. And it Association leadership briefing with when the courts dissolved the opposition n INDIA threats of violence online and over the Shamshad TV managers following is conceivable that before long, another a hostage situation in the television party, CRNP, jailed the leader for treason In the world’s largest democracy, the threat phone after the publication of a series of owner – possibly from overseas – could company’s offices.Image courtesy:AIJA and banned 118 members from politics for to the media is creating a real cause for investigative news reports exposing illegal acquire this single company, and it may five years. concern. In September 2017 alone, two sand mining in the state. After lobbying have no commitment to journalism at all. journalists were killed. The brutal murder by the journalist community, she was One worried executive told me this year: It is estimated that at least 100 dissidents, of Gauri Lankesh in her driveway in 2017 accorded police protection outside her “Proper news media companies need to journalists and political activists have fled saw the country’s media community come home. be strong enough to tell governments Cambodia since the crackdown. together and demand action. So far, one and other companies to f--- off.” person has been arrested in connection n MALAYSIA n CHINA with the targeted killing. Outdated legislation continues to impede If they are not, the implications for In 2017, China held the 19th National press freedom in Malaysia and acts as the media freedom are obvious. Congress of the Communist Party, which Since 2005 more than 75 journalists and biggest threat to the country’s journalists. saw President Xi Jinping re-elected for his media workers have been killed in India. Political cartoonist Zunar is still facing 43 Colin Peacock is the presenter second term as leader of the Community Yet in the past 12 months, the situation years in jail under the draconian Sedition of RNZ’s (Radio New Zealand) Party and President of China. for the media across the country is on Act for cartoons that he drew regarding the “Mediawatch” program. the decline, particularly for journalists in ongoing 1MBD corruption scandal. In the lead-up to the Congress, the rural areas and small towns. Job insecurity government-orchestrated crackdown continued to be an issue, with arbitrary The government’s control of the media is on the media, free speech and access to firing and lay-offs in major media outlets making it harder for independent media information saw the IFJ record more than across the country. to flourish in Malaysia. The fact that CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 72 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 73

publishing licenses must be approved by President Yameen declared a 15-day state Rohingya refugee crisis. Media reports n PHILIPPINES the government and renewed each year, of emergency, which was extended for a allege that sensitive records contained Since the election of President Rodrigo gives the government unrivalled power further 30 days in mid-February. in the Myanmar Border Guard document Duterte in June 2016, the situation for over the media, creating a culture of included detailing security force numbers the media in the Philippines, globally intimidation. Since then, the media has been harassed and the amount of ammunition used in a recognised as one of the world’s most and targeted, most notably Raajje TV. Since wave of attacks in late August. The Official dangerous countries for journalists, has The Malaysian government’s attempts to February 5, at least six Rajjee TV journalists Secrets Act makes it unlawful to acquire and deteriorated. control information through legislation have been arrested. Hussain Hassan was possess classified. were further evident with the tabling injured during his arrest on February 16, Since 1990, the IFJ has recorded the murder of a new Anti-Fake News Bill in March and officials tried to block him from leaving The journalists are still in custody, as two of at least 155 journalists, making it the 2018. Under the new legislation which the Maldives for medical treatment days bail applications have been denied. deadliest country in the Asia Pacific region. was tabled in the lead-up to general later. In mid-March MPs called for Raajje TV However, the situation over the past 12 A protest in Timor Leste calling on charges of slanderous denunciation to be dropped against journalists Oki elections in the second half of 2018, to be shutdown, although not for the first The arrests of Wa Lone and Kyaw Soe are months has seen new challenges emerge, Raimundos and Lourenco Martins. Image courtesy: IFJ persons found guilty of publishing “fake time had these calls been made. just part of a wider crackdown against the including direct threats and harassment news” face a maximum of six years in jail. media. Article 66(d) under the Myanmar from the President. Yet the legislation does not define fake n MYANMAR Telecommunications Act is another key tool The investigative article from 2015 looked condemned by MEAA and many other press news; instead that is up to the courts to Journalists in Myanmar are working in in the government’s arsenal, which has seen On May 30, 2017, President Duterte at a government tender for IT services. freedom groups around the world because determine. an environment of threats, harassment, journalists sued for criminal defamation. described ABS-CBN and the Philippine Daily The story misidentified the company it allows the government to pursue, intimidation and constraints on their ability Inquirer as “sons of whores” and warned as the eventual winner of the contract, intimidate and silence journalists.” n MALDIVES to report on events. In the past 12 months, Local media in Myanmar estimate at least them of karmic repercussions for their claiming that Araújo had recommended Yameen Rasheed was brutally stabbed this has been particularly evident with the 60 journalists have been charged under critical coverage of his deadly drug war. that company. The Post apologised for The IFJ said: “We stand with our colleagues to death 16 times in the hallway of his mass displacement of the Rohingya people Article 66(d) since Aung Sung Suu Kyi took its error, corrected the story, published in Timor Leste in deploring this campaign apartment complex at 3am on April 23, in Western Myanmar. office in November 2015. This was followed in July 2017, during Araújo’s right of reply on its front page and against them led by the Prime Minister. 2017. Rasheed was an outspoken critic of Duterte’s State of the Nation Address, Martins resigned as editor. However, on Slanderous denunciation or criminal the government and religious intolerance in The government-led clampdown on n NEPAL where he said that Rappler violated the January 22, 2016, Araújo filed a case with defamation by any other name is a brutal the Maldives. He had been receiving death reporting on the Rohingya crisis culminated Nepal successfully held local, provincial 1987 Constitution as it was solely owned by the public prosecutor under article 285 (1) attack on press freedom and an attempt to threats, posting them on social media and in the abduction and subsequent arrest of and general elections in 2017 according Americans. of Timor Leste’s Penal Code accusing Oki silence critical voices.” going to the police for protection. His death two Reuters journalists, Wa Lone and Kyaw to the new Constitution that supposedly and the then-editor of the Timor Post of is illustrative of the volatile landscape that Soe. The pair disappeared on December ended a decade-long political transition Six months later, the Philippines “slanderous denunciation”. n PACIFIC the country’s media operates within. 12, 2017 following a dinner in Yangon. The and brought in political and administrative Securities and Exchange Commission The media situation in the Pacific differs following day, the Ministry of Information stability. However, it’s a testing time for (SEC) revoked Rappler’s registration for Prior to the charges being dismissed, the from the wider Asia Pacific region, in so Over the past 12 months, the situation released a statement saying that the two the media and journalists who continue to allegedly violating the Constitution and IFJ and MEAA had advocated on behalf much that journalists are generally safer in the Maldives has become increasingly journalists had been arrested for having suffer from attacks and threats, and thereby the Anti-Dummy Law. Rappler has denied of Oki and Martins to have the charges and killings are a rarity. However, over difficult for dissidents and critics, as the documents that related to the unrest in resort to self-censorship. the allegations and the case continues to against them withdrawn (in 2017, Oki was the past 12 months, the situation hasn’t government tries to maintain control. Rakhine state. proceed. named as one of the applicants of the improved dramatically, and journalists are Religious extremism has also had an impact During the year, some journalists in Nepal MEAA-APHEDA Union Aid Abroad Balibo still facing challenges. on the media. The statement said that the pair had been faced threats and attacks for their news The battle between Duterte and Rappler Five-Roger East Fellowship recipients). arrested for illegally acquiring information about corruption. Many journalists were continues on many fronts, with Rappler In Fiji the status of the country’s press In early 2018, the Maldives Supreme Court with the intention to share it with foreign also arrested for their political opinions journalist Pia Randa banned from Australian barrister and IFJ legal advisor freedom is in question and in 2017, it orders the release of opposition political media. In January they were officially ahead of the elections and released without the Philippines Presidential Palace, Jim Nolan said: “If the two are convicted ranked the worst on Reporters’ Without leaders and reinstates 12 suspended MPs, a charged under the Official Secrets Act after charge. Malacanang in February, 2018. Randa, who this will represent a significant stain Borders Press Freedom Index. While Fiji decision that was not acknowledged by the details emerged that two policemen handed has covered the presidential beat for many on the reputation of democratic East had improved from the previous year, it government. Four days later on February 5, them classified documents linked to the The biggest challenge to Nepali media, years, and is a member of the Malacanang Timor. The case is all the more grave as was still the worst ranked Pacific nation – a however, was related to laws and regulation. Press Corps, was also banned from the it involves an article which attacked the point strongly disputed by the country’s The Chief Justice of the Supreme Court executive office. The ban against Randa was Prime Minister. The charges have been leaders. The status of Fiji’s media is largely passed an order asking Kantipur national followed up in March when she was blocked instituted at his behest. Any decision will due to the Media Decree of 2010, which A protest in Bangalore, daily not to publish further news regarding from covering the Go Negosyo 10th Filipina also be an encouragement to authoritarian continues to stifle press freedom. India following the brutal controversy related to his age. The High Entrepreneurship Summit at World Trade governments in the region which has murder of journalist Gauri Court declined to issue an order to stop the Center, after she was told the event was off- been marked by increasing attacks upon In Vanuatu the previous 12 months has Lankesh. Image courtesy Laxmi Murthy police from forcing the journalists to reveal limits to Rappler. the press. Until these charges emerged, seen the country start to implement the sources of a news story. Nagarik national Timor Leste was one of the few remaining newly passed Right to Information law. daily was subject to a strategic lawsuit n TIMOR LESTE democracies in the region which enjoyed While the law is a positive step for media targeted at stopping them from reporting In a win for press freedom in 2017, two a free press and where journalists could development in Vanuatu, the media face on a large scale corruption by government Timorese journalists, Oki Raimundos pursue their craft free from the threat of challenges particularly in regards to appointed head of the state-owned oil and Lourenco Martins had “slanderous state prosecution.” working conditions and pay. corporation. denunciation” charges against them dismissed. The verdict came more than 18 MEAA CEO Paul Murphy said: “This legal Alex Hearne is the IFJ Asia-Pacific The new constitution has given the local months after an article authored by Oki assault on an individual journalist is an office’s projects and human rights bodies rights to monitor small community Raimundos was published in the Timor outrageous over-reach. It uses a draconian coordinator radios and a few of them have passed Post pertaining to Rui Maria de Araújo, in law to keep pursuing a journalist long regulations that threaten media freedom as his former role as advisor to the country’s after an error has been acknowledged and the local bodies can suspend the broadcast finance minister. the record corrected. This law has been of the radios over the contents. CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 74 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 75

The bodies of some of the 58 people including 32 journalists murdered in the Ampatuan Massacre, southern Philippines, November 23 2009 - the single worst atrocity committed against journalists. Image courtesy Nonoy Espina THE MEDIA SAFETY AND SOLIDARITY FUND

MEAA initiative established n JOURNALIST SAFETY AND The IFJ recorded more than 900 media in 2005, the Media Safety & HUMAN RIGHTS violations between the years 2008 to 2017, Solidarity Fund, is supported In 2017 MSSF supported the work of more than 30 per cent recorded in the Aby donations from Australian the IFJ Asia-Pacific’s human rights and Beijing Municipality alone. There were 250 journalists and media personnel to safety program. Under the program, IFJ incidents of censorship; more than 190 assist colleagues in the Asia-Pacific AP remained a prominent advocate in the arrests, detentions and/or imprisonments; region through times of emergency, war region for press freedom, journalists’ rights 90 restrictive orders and 80 incidents of and hardship. and safety. harassment and/or threats. IFJ figures indicate there are 38 media workers The fund trustees direct the In March 2017, the IFJ AP launched the currently known to be detained in China, International Federation of Journalists Byte Back Campaign: Fighting Online including renowned democracy advocate Asia-Pacific to implement projects Harassment of Journalists calling for strong Liu Xiaobo who died in custody. to be funded by the MSSF. The fund’s action to stop cyber bullying and online trustees are Marcus Strom, national harassment of women journalists. In May The IFJ AP continued its campaign for Oki MEAA Media section president; the two it launched the #JournosAgainstShutdowns Raimundos and Lourenco Vincente, who national MEAA Media vice-presidents, campaign raising awareness for internet were charged with criminal defamation in Karen Percy and Michael Janda; two shutdowns as a press freedom issue. Timor Leste. On June 2, in a win for press MEAA Media federal councillors, Ben freedom, the charges against the pair were JOURNALIST SAFETY Butler and Alana Schetzer; and Brent n PRESS FREEDOM dismissed. Edwards representing New Zealand’s In January 2018, the IFJ launched the 10th journalists’ union, the E tū, which also China Press Freedom Report,181 reviewing n SUPPORTING THE CHILDREN supports the fund. this bleak period for freedom of expression. OF SLAIN JOURNALISTS n November 23 2009, on a hilltop The convention would for the first time of expression. Despite this, there is no From the optimism and hope for China The MSSF helps fund the education of the in Mindanao in the southern establish binding standards creating independent course of action for members Aside from contributions made by leading up to the 2008 Beijing Olympics, children of slain journalists. Philippines, 58 people including 32 safeguards specifically for journalists and of the public or other media workers MEAA members as a result of enterprise where a more free and open media was journalists were murdered in the media workers. in cases of violations of the rights of a bargaining agreement negotiations, the promised by China’s leaders to the world, In Fiji, MSSF supports Jone Ketebaca, the O 179 Ampatuan Massacre. This, the largest journalist to lodge an application for other main fundraising activities of the the IFJ reports that reality on the ground son of Sitiveni Moce who died in 2015 after single atrocity against journalists, has While under international humanitarian the case to be heard in an international fund are auctions and raffles. is harshly different, with a continuing and he succumbed to injuries sustained when become the focal point for efforts to end and human rights law journalists enjoy procedure. disturbing decline in media freedoms in he was attacked by soldiers in 2007. impunity over the killing of journalists and the same protections as all other civilians, both Mainland China and Hong Kong. increase protection in international law. such laws fail to acknowledge that The current human rights regime also In Nepal, MSSF supports 23 children with journalists face greater risks compared to fails to take into account the risks two due to graduate from university at the In November 2017 journalists’ leaders other civilians. associated with the journalistic profession. end of the year. The education program was from around the world backed a call by While everyone’s right to free speech established in 2010 to help the children the International Federation of Journalists There is a strategic advantage to be is protected, the exercise of freedom of journalists who have been killed since (IFJ) for a ground-breaking new United gained from targeting the media – those of expression by media professionals the transition to democracy began in 2005. Nations Convention aimed at giving who wish to prevent the dissemination of is distinct: they are involved in the To date, this financial support has been greater protection for journalists and information and international scrutiny circulation of information and ideas on a $181,472 (including administration fees journalism in the face of a tide of violence increasingly deliberately target journalists. regular basis, with a much wider impact on paid to the International Federation of and threats. (MEAA is an affiliate member Journalists’ deliberate proximity to any mass audiences, hence providing a greater Journalists). union of the IFJ.) conflict also makes them especially incentive to target them by those who vulnerable; unlike other civilians, wish to censor unfavourable speech. In the Philippines, MSSF supports 68 The call comes as figures show the journalists do not avoid conflict areas. students – 25 are the children of journalists numbers of journalists being violently Journalists are targeted on account of their killed in the 2009 Ampatuan Massacre. At attacked, threatened, jailed and While every individual is entitled to the profession, and a dedicated international the end of the 2016-17 school year, five prevented from working free from fear protection of their right to life, personal instrument would enhance their children will graduate from university and harassment continues to grow, while liberty, security, freedom of expression protection and attach particular stigma to with a range of qualifications including impunity for such crimes is running at and an effective remedy when their rights violations, increasing pressure on States computer science, financial management, over 90 per cent. have been infringed, existing general to both prevent and punish violations, engineering and teaching. human rights instruments fail to reflect which is at the core of compliance with Journalists’ union leaders representing the systemic effect of attacks against international law. The Media Safety and Solidarity more than 600,000 media workers across journalists on societies. Fund remains one of the few examples the world endorsed the IFJ’s proposed The IFJ believes a new binding of inter-regional support and International Convention on the Safety Unlike most violations, attacks on international instrument dedicated to the The children of slain journalists in cooperation among journalists across the Philippines and Nepal have their and Independence of Journalists and journalists’ life or physical integrity safety of journalists, including a specific education funded by the MSSF. Pictured the globe. Please support the work of Other Media Professionals at a meeting in have an impact on the public’s right enforcement mechanism, would improve are three Nepalese children who have the fund by making a donation.182 Tunisia.180 to information, contribute to a decline the effectiveness of the international benefitted from the MSSF’s education support fund. Image courtesy: IFJ of democratic control and have a response. chilling effect on everyone’s freedom CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 76 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 77

‘illegally acquired information with the made life uncomfortable for the powerful, UNESCO says its World Press Freedom Day, intention to share it with foreign media’. whether in banks or the Prime Minister’s held on May 3 each year, “is a date which The government only announced the arrest office. Investigators later found that a celebrates the fundamental principles of of the reporters some 24 hours after they sophisticated device had been planted on press freedom, to evaluate press freedom were detained and the two were held at an the car and remotely detonated.”188 around the world, to defend the media from undisclosed location without contact with attacks on their independence and to pay families or lawyers for two weeks.”186 Exhibit five. February 25, 2018. September tribute to journalists who have lost their 5, 2017 “Gauri Lankesh, 55, a respected lives in the exercise of their profession. It The war on terror has provided the excuse veteran journalist and outspoken critic serves as an occasion to inform citizens and the opportunity for governments to of Hindu nationalists, was shot dead of violations of press freedom… May 3 draft legislation designed to muzzle the outside her home in Rajarajeshwarinagar acts as a reminder to governments of the media. The media, cowed by allegations in northern Bengaluru, Karnataka, as she need to respect their commitment to press of “fake news” from politicians who can’t returned from work. Three unidentified freedom…”192 handle the truth and already weakened by gunmen on a motorbike fired at least four the digital disruption that have hammered shots at her as she entered through the The disturbing trends overseas, of the industry, have been too slow or too gate of her home. Lankesh died at the governments attacking journalists, jailing weak to respond. scene after receiving gunshots to the head them and even killing them for their and chest. The gunmen fled the scene.”189 journalism, should outrage us all. But Of course, having a US president who Australia is also a country where nine engages in Twitter warfare on sections of Exhibit six. February 25, 2018. “Slovak journalists have been murdered with the media he doesn’t like doesn’t help. And investigative journalist Ján Kuciak and his impunity and Australian Governments have it doesn’t take much for blatant attacks on girlfriend Martina Kušnířova were found spent decades doing little if anything to the media to incubate an environment that shot to death in his house in Velká Mača, bring those responsible for our colleagues’ can make journalism a deadly occupation. some five kilometres from the capital murders to account. Endless tweets decrying “fake news” made Bratislava. The journalist was shot in the Detained Reuters journalists Wa Lone against media outlets will eventually lead chest with a single bullet, and his partner Now Australia appears to be sending and Kyaw Soe Oo are to repercussions. in the head, according to reports. Police signals that it, too, wants to jail journalists escorted by police after a chief Tibor Gašpar said that the murders for their work. The growing trend court hearing in Yangon, Myanmar February 28, Exhibit three. January 9-10, 2018. In a were ‘most likely’ linked to the work of the for Australian Governments to hide 2018. Image: Reuters/ series of 22 threatening phone calls, journalist, Reuters reported.”190 government activities behind a veil of Stringer Brandon Griesemer made a series of secrecy, increase existing or impose new increasingly violent threats to staff at But perhaps there is no greater proof of penalties for disclosing information, and CNN’s Atlanta headquarters. The threats how journalists are being targeted for use telecommunications data to secretly included: “Fake news… I’m coming to gun death than the revelations that came hunt and identify journalists’ confidential you all down… You are going down. I have a in April 2018. A US court was told how sources, certainly indicates that legitimate THE WAY FORWARD gun and I am coming to Georgia right now renowned Sunday Times journalist Marie scrutiny of what governments do in to go to the CNN headquarters to fucking Colvin was hunted using her phone signal. our name can and will be punished. gun every single last one of you.”187 The signal was then used to determine And remember, these new laws and BY MIKE DOBBIE the range for the subsequent rocket penalties, as well as the increased powers Killing journalists is not new. In recent barrage that killed her, French freelance of surveillance that go with them, are years, the bulk of journalist deaths were photojournalist Remi Ochlik and wounded frequently given bipartisan support as they here is plenty of evidence available number since it began keeping such records under the controversial Section 57 of the the result of wars – such as journalists both three others.191 pass through the Parliament. to build a case that journalists are in the early 1990s.183 Information and Telecommunication Act. He foreign and local working in conflict zones being increasingly and deliberately was charged with taking a ‘screenshot’ of where they can be caught in cross-fire. Exhibit seven. February 2, 2012. “As part The Espionage Bill, if it is allowed to Ttargeted for their journalism. “For the second consecutive year more a Facebook post involving the president of her reporting, Ms Colvin gave live become law without a genuine media Governments have become more secretive than half of those jailed for their work and the prime minister and showing it to But there is a disturbing pattern developing interviews to the BBC and CNN… The exemption, has the potential to make and are enacting laws to prevent legitimate are behind bars in Turkey, China, and the local people. The journalist denied the around several journalists deaths over the highest levels of the Syrian government, Australia the worst in the western world for scrutiny of their activities. Whistleblowers Egypt. The pattern reflects a dismal allegation.”185 past 12 months. Increasingly, journalists including President Assad’s brother, were criminalising journalism. are being harassed, intimidated and failure by the international community are being deliberately hunted, targeted behind the plan to track the journalist The Bill is just the latest in a basket of ultimately arrested and imprisoned to address a global crisis in freedom of Exhibit two. December 12, 2017. “Two and murdered because of their journalism. once she entered Syria, the lawsuit claims, national security law amendments that for revealing government secrets. the press,” CPJ said. Reuters journalists, Wa Lone and Kyaw It is almost as if there is a more brazen using a mobile satellite interception device punish whistleblowers seeking to disclose And journalists who are sought out by Soe Oo, are arrested in Myanmar’s main attitude to killing journalists now that may that could tap broadcast signals and locate instances of fraud, dishonesty, corruptions whistleblowers to publish and broadcast “Globally, nearly three-quarters of city, Yangon, after being invited to meet have something to do with the culture of their origin as well as an informant on the and public health and safety issues, while the truth so that their communities can journalists are jailed on anti-state charges, police officials over dinner. Myanmar’s impunity that surrounds their murder. ground… The former intelligence officer, also threatening journalists with jail for discover what governments have been many under broad and vague terror laws, government says that the journalists face code named Ulysses, provided a detailed simply doing their job. doing in our name, get locked up or, in while the number imprisoned on a charge charges under the colonial-era Official Exhibit four. October 16, 2017. “Daphne account of how Syrian President Bashar an increasing number of cases, killed for of “false news”, though modest, rose to a Secrets Act, which carries a maximum Caruana Galizia was less than a mile from Al-Assad’s regime sought to capture or With each new tranche of national security telling the story. record 21,” it reported.184 prison sentence of 14 years. The Ministry home when her Peugeot 108 exploded kill journalists and activists… [Ulysses’] laws passed by the Parliament, jail terms of Information has cited the police as and burst into flames last October, killing account appears to be corroborated by for journalists have steadily risen from six In its 2017 prison census, the New York- Exhibit one. November 21, 2017. “Anisur saying they were ‘arrested for possessing her instantly and sending shrapnel into Syrian government documents filed months to up to 20 years for those who based Committee to Protect Journalists Rahman, a 33-year-old journalist with Daily important and secret government a nearby field. She was 53 and the most as evidence in the case, which suggest write news stories revealing the truth and (CPJ) found that 262 journalists were Sangbad in Roumari upazilla, Rangpur documents related to Rakhine State and famous investigative journalist in Malta. In the regime targeted her to silence her keeping their communities informed. While behind bars around the world, the highest in northern Bangladesh, was arrested security forces’. The ministry said they had that tiny country, her scoops consistently reporting on its atrocities.” Governments profess that it was never their CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 78 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 79

13 “Journos reject spy risk claim for ‘flawed’ law”, police-believe/9488824 REFERENCES Dana McCauley, The Australian, March 19 2018 https://www.theaustralian.com.au/business/media/ 27 Donald J. Trump, Twitter, July 2 2017, https:// twitter.com/realdonaldtrump/status/8815031471680 1 Hansard, House of Representatives, December journos-reject-spy-risk-claim-for-flawed-law/news-sto 71680?lang=en JOURNALISM IS NOT A CRIME… BUT IN AUSTRALIA 7 2017 https://www.aph.gov.au/Parliamentary_ ry/4d30779ebd135758d1f642ce60676b34 Business/Hansard/Hansard_Display?bid=chamber/ 14 ‘Cut ABC budget or we will oppose savings 28 “Michigan man accused of threatening to hansardr/716f5e71-dee3-40a3-9385- THERE ARE MANY WORKING HARD TO MAKE IT SO. measures, says One Nation’, Rosie Lewis, The attack CNN identified with Hitler, former classmate 653e048de81b/&sid=0000 Australian, April 12 2017, https://www.theaustralian. says”, Trevor Bach, Mark Berman and Kyle Swenson, The Washington Post, January 23 2018 https:// 2 “Stop criminalising journalism - Petition to com.au/business/media/cut-abc-budget-or-we-will- www.washingtonpost.com/news/post-nation/ Prime Minister Malcolm Turnbull and Attorney- oppose-savings-measures-says-one-nation/news- wp/2018/01/23/michigan-man-accused-of- General Christian Porter”, MEAA, January 2018 story/aa3652fa4e50f1f64127e9d049eac194 threatening-to-attack-cnn-identified-with-hitler- http://www.meaa.org/stop-criminalising-journalism/ 15 ‘Roberts claims ABC colluding with IS after former-classmate-says/?utm_term=.4100d1e83e85 orders to avoid scrutiny and transparency. 3 Submission to the Parliamentary Joint Afghanistan trip cancelled’, SBS, April 12 2017 29 “Labor politician Brian Mitchell calls ABC Committee on Intelligence and Security, Law https://www.sbs.com.au/news/roberts-claims-abc- journalist quizzing MP Justine Keay a ‘maggot’”, Council of Australia, January 22 2018 https:// colluding-with-is-after-afghanistan-trip-cancelled Shield laws for journalists have been Dan Conifer, ABC, December 6 2017 http://www. www.aph.gov.au/Parliamentary_Business/ enacted in the Northern Territory and soon 16 ‘Quadrant issues apology to ABC over ‘sick, abc.net.au/news/2017-12-06/federal-politician-calls- Committees/Joint/Intelligence_and_Security/ unhinged’ article’, Scott Henry and Stephen abc-journalist-a-maggot/9232304 in South Australia leaving Queensland out EspionageFInterference/Submissions Brook, The Australian, May 24 2017 https://www. in the cold as the only jurisdiction that still 30 “‘I hate journalists and I’m over the mainstream 4 ‘Turnbull’s new secrecy laws: prison theaustralian.com.au/business/media/abc-boss- media’: ACT Chief Minister Andrew Barr”, Kirsten thinks it’s OK to compel journalists, on for whistleblowers and journalists’, Sydney michelle-guthrie-demands-apology-from-quadrant/ Lawson,. The Canberra Times, February 12 2018 threat of contempt of court, to disobey their Criminal Lawyers, January 26 2018 https://www. news-story/650c4c93197c40c61f333d434b7ea0bb http://www.canberratimes.com.au/act-news/i-hate- sydneycriminallawyers.com.au/blog/turnbulls- ethical obligations and reveal the identity 17 “‘One down, many to go’: Peter Dutton calls journalists-and-im-over-the-mainstream-media-act- new-secrecy-laws-prison-for-whistleblowers-and- for ABC purge after Abdel-Magied axing”, Michael chief-minister-andrew-barr-20180309-h0x9xk.html of their confidential sources. Hopefully, journalists/ Koziol, The Sydney Morning Herald, May 25 2017 this will soon be remedied and then the 31 “Record number of journalists jailed as Turkey, 5 ‘Spy law puts journalists at risk of jail, ex- https://www.smh.com.au/politics/federal/one-down- jurisdictions can come together to create a China, Egypt pay scant price for repression”, judge warns’, Nicola Berkovic, The Australian, many-to-go-peter-dutton-calls-for-abc-purge-after- Committee to Protect Journalists, December 13 2017 uniform national shield law regime. February 2 2018 https://www.theaustralian.com. abdelmagied-axing-20170525-gwcp78.html https://cpj.org/reports/2017/12/journalists-prison- au/national-affairs/national-security/spy-law-puts- 18 ‘One Nation will not block budget measures jail-record-number-turkey-china-egypt.php journalists-at-risk-of-jail-exjudge-warns/news-story/ The Senate Select Committee also called over ABC funding cuts – as it happened’, Gabrielle d5a761eff99d24951ba5c99efc7fb85d for the restoration and maintenance of Chan, The Guardian, May 31 2017, https://www. 32 “Time to end impunity: IFJ urges drastic change in media safety after 82 journalists killed 6 ‘Dangerous changes to espionage law’, theguardian.com/australia-news/live/2017/may/31/ proper funding for public broadcasting, not in 2017’, IFJ, January 31 2017 http://ifj-safety.org/ Australian Lawyers Alliance blog, January 2018, george-brandis-backs-asio-head-refugees-not- en/contents/time-to-end-impunity-ifj-urges-drastic- least to ensure obligations to their rural https://www.lawyersalliance.com.au/opinion/ source-of-terrorism-politics-live?page=with:block- change-in-media-safety-after-82-journalists-killed- and regional audiences can be maintained dangerous-changes-to-espionage-law 592dfe9de4b0bdd87e2f19a9 Journalist Marie Colvin was killed “in a targeted rocket in-2017 attack” on a makeshift media centre in the rebel-held but also to ensure that their fact-checking 7 ‘Comments on the National Security Legislation 19 “Coalition demands ABC publish list of staff city of Homs, the court papers allege. Image: Reuters/ 33 ibid capability can continue. Amendment (Espionage and Foreign Interference) Bill earning more than $200,000”, Amanda Meade, Sunday Times 2017 in response to the call for submissions by the The Guardian, October 13 2017, https://www. 34 “World Press Freedom Day” UNESCO, The thinking behind these moves is Parliamentary Joint Committee on Intelligence and theguardian.com/media/2017/oct/13/coalition- https://en.unesco.org/commemorations/ Security’, United Nations’ Special Rapporteur on the demands-abc-publish-list-of-staff-earning-more- worldpressfreedomday intention to actually jail journalists, these welcome. In many cases, they reverse what promotion and protection of the right to freedom than-200000 Bills then become enacted and the penalties had been attacks on press freedom. of opinion and expression; the Special Rapporteur 35 http://mlsv.org.au/wp-content/ 20 ‘Laws to ensure ‘fair and balanced’ on the situation of human rights defenders; and the uploads/2013/09/Justice-Betty-King-Underbelly.pdf remain on the statute books, silently ABC coverage won’t change anything, says Special Rapporteur on the promotion and protection Communications Minister’, AAP, The Australian, 36 intimidating journalists and threatening to It’s more difficult to understand why of human rights and fundamental freedoms while ibid September 17 2017 https://www.theaustralian.com. punish anyone who dares reveal the truth – Australian lawmakers continue to be so countering terrorism, February 15 2018 http://www. au/business/media/laws-to-ensure-fair-and-balanced- 37 http://www.smh.com.au/comment/valid- ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/ the chilling effect encapsulated. intent on amending to national security abc-coverage-wont-change-anything-says-pm/news- reasons-for-suppression-orders-victoria-chief-justice- Documents/Issues/Opinion/Legislation/OL- legislation in order to criminalise story/016c66a8492b235fae8fe820894d9137 20151017-gkbkvu.html AUS-2-2018.pdf&action=default&DefaultItemOp There are some encouraging signs that journalists and journalism. en=1 21 ibid 38 http://www.theage.com.au/victoria/court- Governments may at least be listening to suppression-orders-still-issued-in-their-hundreds-in- 8 “New A-G Christian Porter retreats on spy laws”, journalists’ concerns. The Senate select While their efforts continue, and 22 “Shrill attacks on ABC adjustments are victoria-20151010-gk611a.html Simon Benson and Nicola Berkovic, The Australian, hysterical, unhinged”, Mitch Fifield,The Australian, committee into the future of public interest governments are always reluctant to February 8 2018 https://www.theaustralian.com.au/ October 9 2017 https://www.theaustralian.com. 39 https://twitter.com/s_deery/ journalism has made recommendations remove laws from the statute books that national-affairs/national-security/new-ag-christian- au/opinion/shrill-attacks-on-abc-adjustments-are- status/826975219378032640 porter-retreats-on-spy-laws/news-story/8254ecc457a mostly in line with MEAA’s suggestions. would lead to a diminution of their powers, hysterical-unhinged/news-story/1a428edf761c07e50 40 Editorial http://www.theage.com.au/comment/ 1509e2506887888a96225 474701253f3cdef Not least of these is backing the MEAA press freedom in Australia and the public’s the-age-editorial/suppression-orders-restricting-the- call for a review of Australia’s 12 year old right to know will continue to be hard- 9 “Amendments to Espionage and Foreign 23 “MEAA submission on Australian Broadcasting publics-right-to-know-20161111-gsnac0.html Interference Bill”, Attorney-General Christian uniform national defamation law regime. pressed. Journalism is not a crime… but in Corporation Amendment (Fair and Balanced) Bill 41 ibid Porter, media release, March 6 2018, https://www. 2017”, MEAA, December 2017 https://www.meaa. Consideration has also been given about Australia there are many working hard to attorneygeneral.gov.au/Media/Pages/Amendments- org/download/meaa-submission-on-australian- 42 http://www.smh.com.au/comment/valid- types of government support that can be make it so. to-Espionage-and-Foreign-Interference-Bill.aspx broadcasting-corporation-amendment-fair-and- reasons-for-suppression-orders-victoria-chief-justice- balanced-bill-2017/ 20151017-gkbkvu.html offered to the media industry. 10 “Joint media organisations 2nd supplementary Mike Dobbie is the MEAA Media submission on the Espionage Bill”, MEAA et al, 24 ‘Liberal MP attacks ABC for cabinet file leaks’, 43 ibid The Australian Competition and Consumer section’s communication manager and March 13 2018, https://www.meaa.org/download/ Ben Fordham, 2GB, January 31 2018 https:// joint-media-organisations-2nd-supplementary- www.2gb.com/abc-not-acting-in-national-interest- 44 http://glj.com.au/ Commission has launched an inquiry into editor of MEAA’s annual press freedom submission-on-the-espionage-bill-1803013/ shouldve-returned-documents-to-afp/ the power of digital platforms and the reports. 45 Two Years of Suppression under the Open 11 “Joint media organisations 2nd supplementary Courts Act 2013 (Vic), Jason Bosland, Sydney Law harm they do to media outlets not least 25 ‘Investigative journalist Daphne Caruana submission on the Espionage Bill”, MEAA et al, Galizia filed her final blog post criticizing Maltese Review, 2017 in revenue terms, but also in their use of March 13 2018, https://www.meaa.org/download/ government officials. Thirty minutes later she was 46 http://www.abc.net.au/news/2015-07-09/ joint-media-organisations-2nd-supplementary- journalistic content. MEAA has made an dead’, Julien Gignac, The Star, October 16 2017 suppression-orders-being-issued-far-too-often-in- submission-on-the-espionage-bill-1803013/ important, detailed submission to this https://www.thestar.com/news/world/2017/10/16/ victoria/6608438 journalist-who-exposed-her-nations-panama-papers- 12 “Secrecy exemption leaves journalists open inquiry. links-killed-in-car-bomb.html 47 Two Years of Suppression under the Open to foreign agents: spy boss”, Michael Koziol, The Courts Act 2013 (Vic), Jason Bosland, Sydney Law Sydney Morning Herald, March 16 2018 https://www. 26 “Slovak journalist Jan Kuciak and girlfriend Review, 2017 Victoria has released a significant report smh.com.au/politics/federal/secrecy-exemption- killed over his investigative work, police say”, ABC, seeking to curb its courts’ obsession with leaves-journalists-open-to-foreign-agents-spy-boss- February 27 2018 http://www.abc.net.au/news/2018- 48 http://mlsv.org.au/wp-content/ using suppression and on-publication 20180316-p4z4oj.html 02-27/slovak-journalist-killed-because-of-his-work- uploads/2013/09/Justice-Betty-King-Underbelly.pdf CRIMINALISING JOURNALISM CRIMINALISING JOURNALISM 80 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018 81

49 ibid 69 “A report on the Commonwealth Ombudsman’s Senate/Future_of_Public_Interest_Journalism/ 96 “Fairfax journalists write to Fairfax board and 15 2017 https://www.meaa.org/download/meaa- delay-meaa/ inspection of the Australian Federal Police under PublicInterestJournalism shareholders”, MEAA, May 5 2017, https://www. submission-on-australian-broadcasting-corporation- 50 ibid the Telecommunications (Interception and Access) Act meaa.org/news/fairfax-journalists-write-to-fairfax-20- amendment-fair-and-balanced-bill-2017/ 131 “Cross-media ownership rules due for review, 1979”, Commonwealth Ombudsman, October 83 MEAA submission to the Senate Economics largest-shareholders/ says Communications Minister Malcolm Turnbull,” 51 http://www.theage.com.au/comment/the-age- Legislation Committee’s inquiry into the Treasury 114 Fox News Drops ‘Fair and Balanced’ Motto, abc.net.au/news, March 9, 2014 editorial/suppression-orders-restricting-the-publics- 2017 http://www.ombudsman.gov.au/__data/assets/ pdf_file/0021/78123/Commonwealth-Ombudsman- Laws Amendment (Enhancing Whistleblower Protection) 97 “Worldwide support for Fairfax journalists”, Michael M Grynbaum, New York Times, June 14 2017 right-to-know-20161111-gsnac0.html Bill 2017, February 16 2018 https://www.meaa. MEAA, May 4 2017 https://www.meaa.org/news/ https://www.nytimes.com/2017/06/14/business/ http://www.abc.net.au/news/2014-03-09/cross- AFP-JIW-report-PDF-FOR-WEBSITE.pdf media-ownership-rules-due-for-rethink-malcolm- 52 https://www.meaa.org/resource-package/press- org/download/meaa-submission-to-the-senate- worldwide-support-for-fairfax-journalists/ media/fox-news-fair-and-balanced.html 70 ibid economics-legislation-committees-inquiry-into-the- turnbull/5308550 freedom-report-2013/ 98 ibid 115 Principle 5, ABC Editorial Policies, Fair and treasury-laws-amendment-enhancing-whistleblower- 132 Cross-media ownership: Malcolm Turnbull 53 Two Years of Suppression under the Open 71 “Government assault on encryption deeply protection-bill-2017/ honest dealing, page 8 concerning”, MEAA, July 14 2017 https://www. 99 “Union slams Isentia move to shift up to 30 says local content would not suffer under proposed Courts Act 2013 (Vic), Jason Bosland, Sydney Law media monitoring jobs offshore”, Zoe Samios, 116 Communications and the Arts Portfolio, changes, abc.net.au/news/, March 10, 2014 http:// Review, 2017 meaa.org/news/government-assault-on-encryption- 84 Evidence (National Uniform Legislation) deeply-concerning-says-meaa/ Amendment (Journalist Privilege) Bill, Northern Mumbrella, November 3 2017, https://mumbrella. Estimates, October 24 2017, page 75 www.abc.net.au/news/2014-03-10/cross- 54 http://www.legislation.vic.gov.au/domino/ Territory Legislative Assembly, https://parliament. com.au/isentias-job-cuts-short-sighted-and- media-ownership-laws-malcolm-turnbull- 72 “Comments on the National Security Legislation emblematic-of-poor-business-practice-says-meaas- 117 Communications and the Arts Portfolio, john-williams/5309526 web_notes/ldms/pubpdocs_arch.nsf/5da7442d8f61e nt.gov.au/committees/EPSC/ENUL Estimates, October 24 2017, page 81 92bca256de50013d008/ca2570ce0018ac6dca257b96 Amendment (Espionage and Foreign Interference) Bill mcinerney-481726 2017 in response to the call for submissions by the 85 MEAA submission on the Northern Territory 133 Matthew Knott, “Malcolm Turnbull moves to 00097bb7!OpenDocument 100 “Fairfax and News cut community news jobs”, 118 “What’s Wrong with being Fair and Balanced”, scrap key media ownership restrictions”, The Sydney Parliamentary Joint Committee on Intelligence and Evidence (National Uniform Legislation) Alan Sunderland, ABC Online, November 2 2017 55 ibid Security”, United Nations’ Special Rapporteur on the Amendment (Journalist Privilege) Bill, January 23 MEAA, November 9 2017, https://www.meaa.org/ Morning Herald, March 14 2015 http://www.smh. news/fairfax-and-news-cut-community-news-jobs/ http://www.abc.net.au/news/2017-11-02/whats- com.au/federal-politics/political-news/malcolm- promotion and protection of the right to freedom 2018 https://www.meaa.org/mediaroom/meaa- wrong-with-being-fair-and-balanced/9111234 56 “MEAA submission to public interest journalism of opinion and expression; the Special Rapporteur submission-on-the-northern-territory-evidence- turnbull-moves-to-scrap-key-media-ownership- inquiry”, July 27 2017, https://www.meaa.org/ 101 “Mates over Merit”, Women in Media survey restrictions-20150313-143leg.html on the situation of human rights defenders; and the national-uniform-legislation-amendment-journalist- and report, June 1 2016 https://www.meaa.org/ 119 ABC reforms to be introduced into the download/meaa-submission-to-public-interest- Special Rapporteur on the promotion and protection privilege-bill-180123/ Senate”, Senator the Hon Mitch Fifield, Minister journalism-inquiry-170714/ download/mates-over-merit-full-report/ 134 http://parlinfo.aph.gov.au/parlInfo/download/ of human rights and fundamental freedoms while for the Department of Communications and legislation/bills/r5635_first-reps/toc_pdf/16038b01. countering terrorism, February 15 2018 http://www. 86 “Whistleblowers left high and dry as South 102 “Coming clean on sex pests in the newsroom”, the Arts, October 18 2017 http://www.minister. 57 “The Year in Australian law”, Peter Bartlett and Australia journalists still face jail for protecting pdf;fileType=application%2Fpdf Sam White, The Chilling Effect - the MEAA annual ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/ Sally Jackson, The Australian, February 27 2012 communications.gov.au/mitch_fifield/news/ Documents/Issues/Opinion/Legislation/OL- sources”, Sheradyn Holderhead, The Advertiser, https://www.theaustralian.com.au/archive/media/ abc_reforms_to_be_introduced_into_the_senate#. 135 https://www.communications.gov.au/what-we- report into the state of press freedom in Australia 2017, October 30 2014 http://www.adelaidenow.com.au/ May 3 2017 https://pressfreedom.org.au/the-year-in- AUS-2-2018.pdf&action=default&DefaultItemOp coming-clean-on-sex-pests-in-the-newsroom/news- WsVudohuaUk do/television/media/updating-australias-media-laws en=1 news/south-australia/whistleblowers-left-high-and- story/cc9710634e175c2b8b9078a485063700 australian-law-5df1c9a0b96b dry-as-south-australia-journalists-still-face-jail-for- 120 MEAA Journalist Code of Ethics https://www. 136 A trigger event occurs where, as a result of a 58 Report of the Senate Select Committee of Inquiry 73 ibid protecting-sources/news-story/7f33dafdf8e776eb86fa 103 https://www.now.org.au/ meaa.org/meaa-media/code-of-ethics/ change of control of a commercial television licence, into the Future of Public Interest Journalism, February e941f79cbee8 the audience reach exceeds 75% of the Australian 74 “Joint Media Organisations submission 104 “Equal Pay Day - Monday, September 4”, MEAA 121 Ethics in Journalism – Report of the Ethics population. 5 2018, https://www.aph.gov.au/Parliamentary_ on National Security Legislation Amendment 87 “Shield laws – protecting journalists and their August 29 2017 https://www.meaa.org/news/equal- Review Committee, Media, Entertainment & Arts Business/Committees/Senate/Future_of_Public_ (Espionage and Foreign Interference) Bill 2017” sources”, https://d3n8a8pro7vhmx.cloudfront.net/ pay-day-monday-september-4/ Alliance Australian Journalists Association Section, 137 Policy Background Paper, Media Control and Interest_Journalism/PublicInterestJournalism/Report MEAA, January 23 2017 https://www.meaa.org/ liberalpartyofaustralia/pages/1956/attachments/ Melbourne University Press 1996 Ownership, Department of Communications’, June download/joint-media-organisations-submission-on- original/1480302341/2036_Chapter_9_Shield_Laws. 105 “Press freedom concerns with super ministry – 2014, p.p. 35-36 59 “Free the Press”, Committee to Protect MEAA”, MEAA, July 19 2017 https://www.meaa.org/ 122 MEAA submission, Senate Environment Journalists campaign page https://cpj.org/ national-security-legislation-amendment-espionage- pdf?1480302341 and-foreign-interference-bill-2017/ news/press-freedom-concerns-with-super-ministry- and Communications Legislation Committee 138 ibid campaigns/free-the-press/index.php?sent=1 88 Future of Public Interest Journalism, meaa/ inquiry into the Australian Broadcasting Corporation 139 Minister for Communications, Senator Mitch 60 “Press Freedom’s Dar Horizon”, report, Freedom 75 “Christian Porter looks at power to decide on Senate select committee, https://www.aph. Amendment (Fair and Balanced) Bill 2017, December prosecution of journalists”, Paul Karp, February gov.au/Parliamentary_Business/Committees/ 106 “MEAA submission to public interest journalism 15 2017 https://www.meaa.org/download/meaa- Fifield, National Press Club Address, Canberra, 16 House, https://freedomhouse.org/report/freedom- inquiry”, July 14 2017, https://www.meaa.org/ March 2016. press/freedom-press-2017 2 2018 https://www.theguardian.com/australia- Senate/Future_of_Public_Interest_Journalism/ submission-on-australian-broadcasting-corporation- news/2018/feb/02/christian-porter-looks-at-power- PublicInterestJournalism download/meaa-submission-to-public-interest- amendment-fair-and-balanced-bill-2017/ journalism-inquiry-170714/ 140 “Media diversity and jobs to be lost under 61 “Legislating Terror in Egypt”, Mai El-Sadany, to-decide-on-prosecution-of-journalists ‘reforms’”, MEAA, September 14 2017 https://www. The Tahrir Institute for Middle East Policy https:// 89 MEAA submission to the public interest 123 “ABC and SBS”, Department of 76 “New A-G Christian Porter retreats on spy laws”, journalism inquiry, July 27 2017 https://www.meaa. 107 The past decade or so has seen television Communications and the Arts, https://www. meaa.org/news/media-diversity-and-jobs-to-be-lost- timep.org/esw/articles-analysis/legislating-terror-in- newsrooms closed in Griffith, the Gold Coast, under-reforms/ egypt/ Simon Benson and Nicola Berkovic, The Australian, org/mediaroom/meaa-submission-to-the-public- communications.gov.au/what-we-do/television/abc- February 8 2018 https://www.theaustralian.com.au/ interest-journalism-inquiry-170714/ Newcastle, Wollongong, Canberra, Orange, Wagga and-sbs Wagga, Mildura and Albury and news services and 141 “ABC to be ‘transparent’ under One Nation 62 “Egypt 2017/2018”, Amnesty International Report national-affairs/national-security/new-ag-christian- deal”, Rosie Lewis and Primrose Riordan, 2017-2018, Amnesty International https://www. porter-retreats-on-spy-laws/news-story/8254ecc457a 90 MEAA opening statement, Public Hearing, local coverage scaled back in Bendigo, Ballarat and 124 “Government panel to review competitive Select Committee on the Future of Public Interest Gippsland, Mt Gambier, Albany, Bunbury, Geraldton neutrality of ABC, SBS”, Darren Davidson The Australian, August 15 2017 https://www. amnesty.org/en/countries/middle-east-and-north- 1509e2506887888a96225 theaustralian.com.au/business/media/greens-use- africa/egypt/report-egypt/ Journalism, May 17 2017 http://parlinfo.aph.gov.au/ and Broome. and Stephen Brook,. The Australian, March 77 “Espionage bill still threatens journalists with parlInfo/search/display/display.w3p;query=Id%3A 29 2018 https://www.theaustralian.com.au/ abc-as-media-bargaining-chip-for-media-reforms/ 63 “Malaysia passed a ‘fake news’ law that would jail, union says”, Paul Karp, Guardian Australia, %22committees%2Fcommsen%2F3c78d456-3399- 108 This is a basic extrapolation of ABC regional business/media/government-panel-to-review- news-story/7bbe039c1de5046650416e7b5f1d1a7c employee numbers. The ABC pie-chart represents punish people for even spreading ‘partly false’ March 6 2018 https://www.theguardian.com/ 42b6-9227-09ea9bdbe69f%2F0000%22 competitive-neutrality-of-abc-sbs/news-story/ 142 “Media diversity and jobs to be lost under news”, Joseph Sipilan, Reuters, Business Insider, April australia-news/2018/mar/06/espionage-bill-still- radio, television and other departments as cf9bd3f9370b6357d9ad5a3cff7745b3 91 “Report of the Select Committee on the Future discrete operational areas. It is possible that these ‘reforms’”, MEAA, September 14 2017 https://www. 3 2018 http://uk.businessinsider.com/malaysia- threatens-journalists-with-jail-union-says meaa.org/news/media-diversity-and-jobs-to-be-lost- passes-fake-news-law-2018-4/?r=AU&IR=T of Public Interest Journalism”, February 5 2018 departments have regional employees. It is certainly 125 ibid 78 “Joint media organisations 2nd supplementary https://www.aph.gov.au/Parliamentary_Business/ the case that they would provide broadcast services under-reforms/ 126 ibid 64 “APC Adjudication 28 February 2018”, submission on the Espionage Bill”, MEAA, March 14 Committees/Senate/Future_of_Public_Interest_ to regional communities. 143 “Australian content on broadcast, radio Australian Press Council http://www.presscouncil. 2018 https://www.meaa.org/download/joint-media- Journalism/PublicInterestJournalism/Report 109 ‘Report of the Independent Inquiry into the 127 “FactCheck: is Australia’s level of media and streaming services”, Senate Environment org.au/adjudication-28-february-2018/ organisations-2nd-supplementary-submission-on- ownership concentration one of the highest in the and Communications References Committee, the-espionage-bill-1803013/ 92 “MEAA welcomes Public Interest Journalism Media and Media Regulation’, R Finkelstein QC, 65 “Senator accuses Coalition of eroding press recommendations”, MEAA, February 6 2018 https:// page 331 world?” The Conversation, December 12 2016. https://www.aph.gov.au/Parliamentary_Business/ freedoms”, Simon Benson, The Australian, March 79 “The Cabinet Files”, ABC, January 30 2018, www.meaa.org/mediaroom/meaa-welcomes-public- https://theconversation.com/factcheck-is-australias- Committees/Senate/Environment_and_ 26 2018 https://www.theaustralian.com.au/news/ http://www.abc.net.au/news/2018-01-31/cabinet- interest-journalism-recommendations/ 110 Ibid, page 332 level-of-media-ownership-concentration-one-of-the- Communications/AustralianContent nation/senator-accuses-coalition-of-eroding-press- files-reveal-inner-government-decisions/9168442 highest-in-the-world-68437 93 “Digital platforms inquiry”, ACCC https://www. 111 Senate Environment and Communications 144 MEAA submission to the Environment and freedoms/news-story/1fda29558f81851ad2b016d5c7 Legislation Committee inquiry, Parliament web 128 “ACCC will not oppose Birketu and Illyria’s Communications References Committee’s inquiry 8215b9 80 “Joint media organisations 2nd supplementary accc.gov.au/about-us/inquiries/digital-platforms- submission on the Espionage Bill”, MEAA, March 14 inquiry page, https://www.aph.gov.au/Parliamentary_ proposed acquisition of Ten”, ACCC web site, on Australian content on broadcast, radio and 66 “AFP officer accesses journalist’s call metadata 2018 https://www.meaa.org/download/joint-media- Business/Committees/Senate/Environment_and_ August 24 2017, https://www.accc.gov.au/media- streaming services, MEAA, February 21 2018 https:// without a warrant”, MEAA April 28 2017 https:// organisations-2nd-supplementary-submission-on- 94 “Digital platforms inquiry – terms of reference” Communications/ABCFairandBalancedBil release/accc-will-not-oppose-birketu-and-illyrias- www.meaa.org/download/meaa-submission-to- ACCC, December 4 2017 https://www.accc.gov.au/ proposed-acquisition-of-ten the-environment-and-communications-references- www.meaa.org/news/afp-officer-accesses-journalists- the-espionage-bill-1803013/ 112 “ABC to be ‘transparent’ under One Nation call-metadata-without-a-warrant/ about-us/inquiries/digital-platforms-inquiry/terms- committees-inquiry-on-australian-content-on- 81 ‘New bill would make Australia worst in the of-reference deal”, Rosie Lewis and Primrose Riordan, 129 “Court gives green light to Ten Network broadcast-radio-and-streaming-services/ 67 https://www.meaa.org/meaa-media/code-of- free world for criminalising journalism’, Johan The Australian, August 15 2017 https://www. takeover by US media giant CBS”, Simone Ziaziaris, ethics/ Lidberg, The Conversation, February 1 2018 https:// 95 “MEAA submission to the ACCC inquiry into theaustralian.com.au/business/media/greens-use- The Sydney Morning Herald,Novemebr 10 2017 145 “Historic media reforms pass Parliament”, theconversation.com/new-bill-would-make- digital platforms”, MEAA, April 10 2018 https:// abc-as-media-bargaining-chip-for-media-reforms/ https://www.smh.com.au/business/companies/ web site of the Ministers for the Department of 68 “AFP did not destroy copies of journalist’s australia-worst-in-the-free-world-for-criminalising- www.meaa.org/mediaroom/meaa-submission-to-the- news-story/7bbe039c1de5046650416e7b5f1d1a7c court-gives-green-light-to-ten-network-takeover-by- Communications and the Arts, October 16 2017, phone records it unlawfully accessed”, Katharine journalism-90840 accc-inquiry-into-digital-platforms-180410/ us-media--giant-cbs-20171110-gzil1v.html http://www.minister.communications.gov.au/ Murphy, Guardian Australia, November 28 2017 113 MEAA submission, Senate Environment mitch_fifield/news/historic_media_reforms_pass_ https://www.theguardian.com/australia-news/2017/ 82 Future of Public Interest Journalism, and Communications Legislation Committee 130 “Ten’s future must be free of government delay parliament#.WsV4oohuaUk nov/28/afp-did-not-destroy-copies-of-journalists- Senate select committee, https://www.aph. inquiry into the Australian Broadcasting Corporation – MEAA”, MEAA, August 30 2017 https://www.meaa. phone-records-it-unlawfully-accessed gov.au/Parliamentary_Business/Committees/ Amendment (Fair and Balanced) Bill 2017, December org/news/tens-future-must-be-free-of-government- CRIMINALISING JOURNALISM 82 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018

146 Communications Legislation Amendment 160 “Australian filmmaker James Ricketson charged 179 “Massacre in the Philippines – Report of the (Regional and Small Publishers Innovation Fund) with spying in Cambodia”, Liam Cochrane, ABC, IFJ International Rapid Assessment Mission”, IFJ Bill 2017, Parliament web page, https://www. June 9 2017 http://www.abc.net.au/news/2017-06- January 2010 https://issuu.com/ifjasiapacific/ aph.gov.au/Parliamentary_Business/Committees/ 09/australian-james-ricketson-charged-with-spying- docs/2009_philippines and “The Ampatuan Senate/Environment_and_Communications/ in-cambodia/8606894 Massacre – Five Years On – Report of the IFJ PublishersInnovationBil International Solidarity Mission”, International 161 “Australian filmmaker James Ricketson appears Federation of Journalists, January 2014, https:// 147 MEAA Media submission on regional and in Cambodian court over spy allegations”, Liam issuu.com/ifjasiapacific/docs/ampatuan_massacre_ small publishers innovation fund, MEAA January Fox, ABC, January 4 2017 http://www.abc.net. five_years_on 7 2018 https://www.meaa.org/download/meaa- au/news/2018-01-04/australian-filmmaker-james- media-submission-on-regional-and-small-publishers- ricketson-appears-in-cambodian-court/9304726 180 “UN convention to protect journalists”, MEAA, innovation-fund/ November 22 2017 https://www.meaa.org/news/un- 162 https://www.change.org/p/julie-bishop-act-now- convention-to-protect-journalists/ 148 “Media innovation fund hits roadblock as to-bringjamesricketsonhome-or-my-innocent-father- senators argue about overseas publishers”, Paul will-die-in-jail 181 http://www.ifj.org/regions/asia-pacific/press- Wallbank, Mumbrella, April 4 2018 https:// freedom-in-china/ten-year-edition-a-decade-of- mumbrella.com.au/governments-media-innovation- 163 “Australian journalist thrown out of Papua for decline/ fund-hits-senate-roadblock-weeks-before- ‘hurting soldiers’ feelings’ amid malnutrition crisis”, launch-508744 Adam Harvey, ABC, February 3 2018 http://www. 182 Media Safety and Solidarity Fund https://www. abc.net.au/news/2018-02-03/australian-journalist- meaa.org/meaa-media/media-safety-and-solidarity- 149 “‘Stuck in the Fifield Triangle’: Greens and expelled-from-papua/9393520 fund/ Labor hit back over government media fund claims”, Paul Wallbank, Mumbrella, April 5 2018 164 “Indonesia told to respect media freedom 183 “Journalists imprisoned in 2017”, Committee to https://mumbrella.com.au/stuck-in-the-fifield- in Papua after expelling BBC reporter Rebecca Protect Journalists, https://cpj.org/data/imprisoned triangle-greens-and-labor-hit-back-over-government- Henschke”, Pacific Freedom Forum, IFEX, February /2017/?status=Imprisoned&end_year=2017&group_ media-fund-claims-509140 19 2018 https://www.ifex.org/indonesia/2018/02/19/ by=location papua-measles-malnutrition/ 150 “Campaign launched to bring them here”, 184 “Record number of journalists jailed as Turkey, MEAA, February 6 2017 https://www.meaa.org/ 165 “MEAA condemns attack ads by Labor MP”, China, Egypt pay scant price for repression” news/campaign-launched-to-bring-them-here/ MEAA, October 5 2017 https://www.meaa.org/news/ Committee to Protect Journalists, December 13 2017 meaa-condemns-attack-ads-by-labor-mp/ https://cpj.org/reports/2017/12/journalists-prison- 151 “MEAA makes formal complaint over treatment jail-record-number-turkey-china-egypt.php of Manus refugee journalist”, MEAA, November 166 “ABC News Statement on Sophie McNeill”, ABC 14 2017 https://www.meaa.org/mediaroom/meaa- October 4 2017 http://about.abc.net.au/statements/ 185 “More journalists arrested under ICT law in makes-formal-complaint-over-treatment-of-manus- abc-news-statement-on-sophie-mcneill/ Bangladesh”, International Federation of Journalists, refugee-journalist/ December 4 2017, http://www.ifj.org/nc/news- 167 “Australian journalist who reported on Manus single-view/browse/13/backpid/33/article/more- 152 “Boochani arrest is an attack on press freedom”, last year detained in PNG”, Calla Wahlquist, journalists-arrested-under-ict-law-in-bangladesh/ MEAA, November 24 2017 https://www.meaa.org/ Guardian, November 4 2017 https://www. news/boochani-arrest-is-an-attack-on-press-freedom/ theguardian.com/australia-news/2017/nov/04/ 186 “Detained in Myanmar”, Reuters, https://www. australian-journalist-who-reported-on-manus-last- reuters.com/subjects/myanmar-reporters 153 Adequacy of existing offences in the year-detained-in-png Commonwealth Criminal Code and of state and 187 “Michigan man accused of threatening to territory criminal laws to capture cyberbullying, 168 ibid attack CNN identified with Hitler, former classmate Legal and Constitutional Affairs References says”, Trevor Bach, Mark Berman and Kyle Swenson, 169 “International Day to End Impunity for Crimes The Washington Post, January 23 2018 https:// Committee, Parliament of Australia https://www. against Journalists 2017”, Unesco, November 2 aph.gov.au/Parliamentary_Business/Committees/ www.washingtonpost.com/news/post-nation/ 2017, https://en.unesco.org/endimpunity-2017/ wp/2018/01/23/michigan-man-accused-of- Senate/Legal_and_Constitutional_Affairs/ about-international-day-end-impunity Cyberbullying threatening-to-attack-cnn-identified-with-hitler- 170 ibid former-classmate-says/?utm_term=.4100d1e83e85 154 “MEAA Media submission to the Senate Legal and Constitutional Affairs References 171 ibid 188 “Who Murdered Malta’s Most Famous Committee’s inquiry into the adequacy of Journalist?”, Rachel Donadio, February 9 2018 existing offences in the Commonwealth Criminal 172 Philip Dorling, “AFP fails to question Jakarta https://www.theatlantic.com/international/ Code and of state and territory criminal laws in Balibo Five investigation”, The Sydney Morning archive/2018/02/who-murdered-daphne-caruana- to capture cyberbullying”, MEAA, December Herald, October 13 2014 http://www.smh.com.au/ galizia/552623/ 21 2017, https://www.meaa.org/download/ national/afp-fails-to-question-jakarta-in-balibo-five- investigation-20141013-115ayu.html 189 “Fearless and outspoken Indian journalist Gauri meaa-media-submission-to-the-senate-legal-and- Lankesh shot dead in Karnataka”, International constitutional-affairs-references-committees-inquiry- 173 ibid Federation of Journalists, September 6 2017 http:// into-the-adequacy-of-existing-offences-in-the- www.ifj.org/nc/fr/news-single-view/backpid/1/ commonwealth-criminal-code-and-of-state-and-te/ 174 Helen Davidson, “Balibo Five: police drop article/fearless-and-outspoken-indian-journalist- investigation into killings of Australian journalists”, shot-dead-in-karnataka/ 155 Senate standing committee Inquiry Guardian Australia, October 21 2014, http://www. website, Adequacy of existing offences in the theguardian.com/australia-news/2014/oct/21/ 190 “Ján Kuciak”, Committee to Protect Journalists, Commonwealth Criminal Code and of state and balibo-five-police-drop-investigation-into-killings- https://cpj.org/data/people/jan-kuciak/index.php territory criminal laws to capture cyberbullying, australian-journalists Parliament https://www.aph.gov.au/Parliamentary_ 191 “Syrian Forces Aimed To Kill Journalists, US Business/Committees/Senate/Legal_and_ 175 “AFP fails Balibo Five, impunity wins”, October Court Is Told”, Anne Barnard, The New York Times, Constitutional_Affairs/Cyberbullying 22 2015 http://www.alliance.org.au/afp-fails-the- April 9 2017 https://www.nytimes.com/2018/04/09/ balibo-five-impunity-wins world/middleeast/syria-marie-colvin-death. 156 Senate standing committee report, Adequacy of html?smid=tw-share existing offences in the Commonwealth Criminal 176 Sara Evringham, “Balibo Five: Relative of Code and of state and territory criminal laws to one of the victims calls for AFP to reopen war 192 “World Press Freedom Day” UNESCO, capture cyberbullying, Parliament, March 28 2018 crimes investigation”, October 16 2015, ABC https://en.unesco.org/commemorations/ https://www.aph.gov.au/Parliamentary_Business/ online http://www.abc.net.au/news/2015-10-16/ worldpressfreedomday Committees/Senate/Legal_and_Constitutional_ balibo-five-relatives-call-for-investigation-to-be- Affairs/Cyberbullying/Report reopened/6859058 193 Report of the Senate Standing Committee on Economics Legislation inquiry into the Treasury Laws 157 ibid 177 “Norwegian Islamist Mullah Krekar arrested for Amendment (Enhancing Whistleblower Protections) Charlie Hebdo comments”, March 3 2015, http:// Bill 2017, March 22 2018 https://www.aph.gov. 158 ibid www.news.com.au/world/norwegian-islamist- au/Parliamentary_Business/Committees/Senate/ 159 “Queensland Police raid is an attack on press mullah-krekar-arrested-for-charlie-hebdo-comments/ Economics/WhistleblowerBill2017/Report freedom”, MEAA, October 29 2017 https://www. story-fndir2ev-1227245521379 meaa.org/news/queensland-police-raid-is-an-attack- 178 http://www.abc.net.au/corp/memorial/ on-press-freedom/ tonyjoyce.htm CRIMINALISING JOURNALISM 84 THE MEAA REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2018