CRIMINALISING THE TRUTH SUPPRESSING THE RIGHT TO KNOW THE REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2016 CRIMINALISING THE TRUTH, SUPPRESSING THE RIGHT TO KNOW THE REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2016 page 2 CONTENTS 3 FOREWORD 46 DEFAMATION Paul Murphy The Hockey case Joseph Fernandez 4 MEDIA GOT COMPLACENT Laurie Oakes 48 WHISTLEBLOWER PROTECTION 11 TALKING PRESS FREEDOM 52 SUPPRESSION ORDERS 12 THE YEAR IN AUSTRALIAN 54 MEDIA REGULATION MEDIA LAW Peter Bartlett 56 STAR CHAMBERS 14 THE MAIN NATIONAL SECURITY 58 REDUNDANCIES LAWS AFFECTING JOURNALISTS AND SOURCES 60 PUBLIC BROADCASTING Mark Pearson 62 PRESS FREEDOM AND 16 NATIONAL SECURITY LAWS AUSTRALIANS ABROAD 2016 AUSTRALIAN Despite changes, terror law will PRESS FREEDOM REPORT still curb press freedom 64 PRESS FREEDOM IN NEW ZEALAND Keiran Hardy Colin Peacock 25 THE AUSTRALIAN FEDERAL POLICE 66 PRESS FREEDOM IN THE ASIA- PACIFIC 28 IMPUNITY International Federation of Journalists Asia-Pacific Editor: Mike Dobbie 32 ASYLUM SEEKERS Thanks to: Peter Bartlett Journalists must continue to resist 68 THE MEDIA SAFETY AND Matt Davidson and protest Ben Doherty Ben Doherty SOLIDARITY FUND Paul Farrell Joseph M Fernandez 36 SUPPRESSING THE RIGHT TO KNOW Keiran Hardy 70 THE WAY FORWARD Alexandra Hearne Laurie Oakes 39 FREEDOM OF INFORMATION Colin Peacock 71 REFERENCES Mark Pearson Little intent behind the promise Peter Timmins Peter Timmins MEAA thanks all the photographers, cartoonists and illustrators who have contributed 44 SHIELD LAWS AND CONFIDENTIAL to this report. SOURCES Cover illustration by Australia’s attacks on journalists Matt Davidson are about politics, not national security Paul Farrell Design by Louise Summerton, Magnesium Media Approved by Paul Murphy, Media, Entertainment & Arts Alliance 245 Chalmers Street, Redfern, NSW 2016 page 3 FOREWORD ournalism is not a crime” goes the campaign is particularly true of recent leaks of Cabinet slogan. It’s a message that is so obvious it documents and draft Defence White Paper. should be redundant. But with nearly 200 “ journalists imprisoned around the world in In order to further persecute and prosecute J1 2015 and another 109 slain in targeted killings, whistleblowers, the government has now equipped bomb attacks or cross-fire incidents2, the message itself with the two-year mandatory metadata clearly is being ignored. retention laws, and the Journalist Information Warrants that accompany them. Journalists’ In fact in Australia, our Parliament has ruled that telecommunications data can be secretly accessed by journalism is a crime. In recent years it has passed 21 government agencies. laws that can imprison journalists for up to 10 years for simply doing their job. All this because government is embarrassed: not because a news story is wrong but because it’s true New national security laws have focussed not only and everyone knows it. So press freedom and the on fighting terrorism but also silencing voices, public’s right to know are being trampled on in a punishing truth-tellers, suppressing the public’s mockery of open and transparent government. right to know and criminalising journalism. Journalists have an ethical obligation to never Government has been so determined to inoculate reveal the identity of a confidential source so the Paul Murphy itself from embarrassment that it has developed a new warrants simply circumvent that and trawl CEO, MEAA battery of laws to punish and imprison those who through journalists’ data anyway. Because it’s done PHOTO: MATHEW LYNN expose the truth, whether they are whistleblowers secretly, punishable by a two-year jail term if that or journalists. ever becomes public, there is no opportunity for the journalist or their media organisation to protect We have already had years of refusal by the current the information from the eyes of public servants government to be open about its activities relating hunting an alleged source. And the only individuals to asylum seekers. Requests for information are met who might stand up for the public interest are with a blanket refusal to discuss “on-water matters”. former judges … appointed by the prime minister. Similarly, questions about what happens in asylum seeker detention centres have been met with silence, Meanwhile, moves continue to suppress obfuscation, and even buck-passing questions to information. Responding to the Home Insulation foreign governments. Last year this approach was Program disaster of 2009, senior public servants are reinforced by brutal legislation: the Border Force now openly seeking to lock-up their deliberative Act now carries a two year jail term if “entrusted advice, and put it out of the reach. Answering personnel” disclose “protected” information. journalists’ requests for information has become too burdensome they say, the Act is “pernicious”, and Despite the threats, courageous whistleblowers still prudent “risk management” demands that the safest get the truth out. But because the government has path is to suppress information from prying eyes. sought to shroud its asylum seeker policy in secrecy and deny the public’s right to know, any news report The greatest shame in Australia’s declining standards relying on a confidential source can generate a request of press freedom is impunity that surrounds the to the Australian Federal Police to investigate the murder of our colleagues Juanita Nielsen, The leak and prosecute the leaker under section 70 of Balibo Five and Roger East — all 40 years ago. Add the Crimes Act which criminalises the “unauthorised to them Tony Joyce (1980) and Paul Moran (2003). disclosure” of information by a Commonwealth Nine journalists whose killers are literally getting officer or a person performing services on behalf of away with murder because of a lack of political the commonwealth. Section 70 has been problematic will, inadequate or non-existent investigations and for years and the Australian Law Reform Commission mealy-mouthed excuses. has called for it to be repealed and replaced.3 In just a few short years, Australia has fallen from As we learnt in April this year with the release being a bastion of press freedom to a country that of information about the AFP’s access to the has passed a raft of national security laws that allow telecommunications data of Guardian Australia government agencies to pursue journalists and their journalist Paul Farrell, AFP trawled through the his sources and criminalises legitimate journalism in email records and carried out “subscriber checks” to the public interest. Increasingly, governments are discover everyone Farrell contacted. Such a process denying the public’s right to know and moves are not only seeks to identify the confidential source in underway to deny information from becoming question but also threatens to compromise every one public. of the journalist’s sources. The AFP created a 200- page dossier, consisting of 51 documents and more There is a great deal of effort being expended by than 800 electronic updates. And yet, the AFP says its government to avoid scrutiny. And it’s getting investigations “are not about targeting journalists”. worse. These attacks undermine democracy and, once started, it is very hard to turn back the tide. More insidious is that some of the leaks recently referred to the AFP for investigation have likely Paul Murphy been made by politicians or their staffers. This CEO, MEAA CRIMINALISING THE TRUTH, SUPPRESSING THE RIGHT TO KNOW THE REPORT INTO THE STATE OF PRESS FREEDOM IN AUSTRALIA IN 2016 page 4 MEDIA GOT COMPLACENT Media outlets have not done enough about the threats to press freedom. Laurie Oakes gave this address to the Melbourne Press Freedom Dinner on September 25, 2015. s concern over terrorism grew last year, Tony related, that clearly have the potential to inhibit Abbott told us: “The delicate balance between public interest reporting. freedom and security may have to shift”. AWell, the balance between press freedom and Some of the legislation was a direct threat to security certainly shifted. Tonight I want to make a journalists themselves. Other measures threatened number of points about that. sources, or made it more difficult to protect the identity of confidential sources. Attack sources and I want to argue that we in the Australian media you attack journalism. have been somewhat apathetic on the press freedom front, not vigilant enough or as willing In the case of Peter Greste and his Al-Jazeera to fight as we should have been. I also want to colleagues, the Australian government did speak say something about our new Prime Minister and up, very loudly, about press freedom. As well as his attitude. And finally, I want to talk about the taking a strong public position it intervened directly need to bring the public along with us in the press with the Egyptian authorities, seeking to have the freedom cause. charges dropped, and then trying to secure pardons. Pressure from the Australian government was It was Indonesian troops who murdered the Balibo certainly vital in getting Peter home. It helped in five 40 years ago, but the response of the Australian freeing his colleagues last Wednesday. Government was shameful. It lied and covered up, feigning ignorance about what had happened to But the government’s domestic actions, I suggest, them. were less helpful. If we hope to influence other countries on this issue, we need to set an example. I remember the late Bill Pinwill, who was press secretary to the Defence Minister Bill Morrison The slogan we’ve used in our support for Peter and at the time of the deaths, telling me about an his two colleagues is: “Journalism is not a crime”. intelligence document he’d seen very soon It’s a good slogan. But it’s surely less effective than afterwards. It quoted an intercepted Indonesian it would be if the Australian government was not, communication referring to the bodies.