The Parliamentary Joint Committee on Intelligence and Security's (PJCIS) report on the impact of law enforcement and intelligence powers on freedom of the press by the has been highly anticipated. The proposed reforms are a realistic step in the right direction to help balance the federal government's need for security through counter-terrorism legislation without compromising on freedom of press.
Australia is now ranked 26th in the World Press Freedom Index, and the new reforms aim to improve that.
The most significant proposals concern Journalist Information Warrants (JIWs) and include:
- A recommendation that senior judges consider applications for JIWs that concern the unauthorised disclosure of government information; and
- An expanded role for Public Interest Advocates, who will make submissions on behalf of the media during warrant applications.
The PJCIS has also recommended the Commonwealth Government review the adequacy of protections for public interest journalism, the Freedom of Information (FOI) culture across departments, and the application of national security classifications by intelligence agencies. While these proposals are largely aspirational, it is unclear if they will result in meaningful reform.
Background: the ABC and Smethurst raids
The direct catalysts for the PJCIS inquiry were the unprecedented raids on the ABC and the home of News Corp journalist, Annika Smethurst. Both concerned the unauthorised disclosure of classified material.
The ABC and News Corp challenged the validity of the raids in court. The ABC's action was dismissed by the Federal Court. In July, the AFP recommended the Commonwealth Director of Public Prosecutions consider laying charges against ABC journalist Dan Oakes.
News Corp challenged the Smethurst warrant in the High Court. The Court held, on narrow grounds, that the AFP's warrant was invalid. However, it declined to order an injunction that would have required the AFP to surrender the seized material. The Smethurst decision was a hollow victory for the media and provides no reassurance for would-be whisleblowers and confidential sources.
New procedures for Journalist Information Warrants (JIWs)
Proposed changes
The PJCIS has proposed five changes to investigative procedures and the JIW framework under the Telecommunications (Interception and Access) Act 1979 (TIA Act).
Investigators to advise journalists of outcomes
The PJCIS has recommended that the AFP and other Commonwealth law enforcement agencies should advise journalists and media organisations when they are no longer persons of interest in an investigation. However, agencies will not be required to do so if they believe it will jeopardise the investigation.
Availability of JIWs to be restricted
Currently, JIWs can be sought on the grounds that they are reasonably necessary for the enforcement of the criminal law, finding a missing person, imposing a pecuniary penalty, investigating a serious offence or investigating an offence punishable by a minimum of 3 years jail. The PJCIS has recommended warrants be available only for the investigation of:
- a serious offence (as defined in s 5D TIA Act); or
- a state, territory or Commonwealth offence punishable by at least 3 years imprisonment.
In practice, this is unlikely to change much. All secrecy and unauthorised disclosure offences are considered serious crimes.
Superior judges to consider certain JIWs
Various submissions argued that JIWs should only be issued by superior judges, noting that a registrar of the NSW Local Court had issued the ABC search warrant. Registrars and AAT members are often under significant time pressure and may be ill-suited to considering the significant and invasive impacts of JIWs.
The PJCIS agreed. It recommended that only judges of State Supreme Courts or the Federal Court should be authorised to issue warrants that:
- are sought under the TIA Act 1979, Surveillance Devices Act 2004 or Crimes Act 1914; and
- concern an investigation into the unauthorised disclosure of government information.
However, all other warrants (for example, warrants issued under the ASIO Act 1979) will be subject to the current procedure. Registrars and AAT members will retain the authority to issue them.
Public Interest Advocates to make submissions on behalf of the media
During the inquiry, the Australian Right to Know coalition lobbied for media companies to be notified of applications for warrants and given the right to contest them. In the UK, journalists have 7 days to challenge a warrant before it is executed.
The PJCIS rejected calls for a similar approach, concluding that evidence might be destroyed if advanced notice were given. Instead, it proposed that the role of a Public Interest Advocate (PIA), which is currently contained in the TIA Act, should be amended and expanded to apply in a wider range of warrants legislation.
Currently, PIAs may provide written submissions on matters relevant to an application for a JIW. The PJCIS has recommended that, if a warrant concerns the investigation of an unauthorised disclosure of government information, a PIA should be required to give the court written submissions addressing:
- the current factors in s 180T TIA Act;
- the public interest in preserving the confidentiality of sources; and
- the public interest in encouraging the sharing of information between journalists and the public.
The PIA will be required to represent 'principles of public interest journalism' and may request further information about the warrant. Only senior counsel or former judges of superior courts may serve as a PIA.
Public records to be kept
In an effort to increase public confidence in the JIW and PIA framework, the PJCIS has recommended that annual reports should be published concerning:
- How many PIAs are serving, their qualifications and the number of cases in which a PIA contested a warrant (including how many times a PIA was successful);
- The number of JIWs issued and the specific offences to which the warrants related; and
- The number of times ASIO applied for a JIW.
Potential effect
Many of the proposals tinker at the edges of the JIW framework. Very few warrants (if any) are issued in respect of low-level crimes. Restricting the availability of JIWs to serious offences is unlikely to decrease the number of warrant applications. The suggestion the AFP should notify journalists when investigations are closed is merely advisory, and there is a risk the 'jeopardy' exemption will be overused.
The extension of the PIA model is, however, a realistic and potentially significant reform. It is hoped the framework will promote greater scrutiny of search warrants and protect public interest journalism. We are also pleased to see the PJCIS has heeded concerns about the secretive nature of the operation of the PIA system. The reporting requirements should increase transparency and accountability.
Finally, we are of the view that all warrants against journalists and media organisations should be considered by a superior judge, not just warrants that relate to the unauthorised disclosure of government information. Raids on the media are a serious imposition on the freedom of the press and should not occur without every appropriate safeguard.
Reform of secrecy offences and security classifications
Proposed changes
Additional defences to be considered
In response to submissions from the media, the PJCIS considered whether journalism should be a defence to secrecy offences or whether the media should be exempt from liability in certain circumstances. The Committee concluded that journalists should not be granted an exemption, as foreign actors may use the protection afforded to journalists in order to gain access to national security information (for example, by portraying themselves as media personnel or cultivating accredited journalists).
However, the PJCIS acknowledged that not every Commonwealth secrecy offence contained a defence for journalists. It recommended the Attorney-General should consider whether additional defences are needed, with any new provisions adopting the wording of s 122.5(6) Criminal Code Act 1995. The PJCIS also urged the Attorney-General's Department to prioritise its long-awaited review of secrecy offences and report by June 2021.
Possible introduction of consultation mechanism
After noting the media was willing to work with intelligence agencies to ensure publication of sensitive information would not damage national security, the PJCIS proposed creating a consultation mechanism. The mechanism would allow journalists and media organisations to discuss classified information with the originating agency without threat of investigation or prosecution. No details were given on how such a scheme might work.
Review of national security classifications
Numerous submissions to the inquiry contended that intelligence agencies inconsistently and inappropriately classify documents. In response, the PJCIS recommended the Government should audit the classification framework, provide proper training for classifiers and review the internal culture at intelligence agencies.
Potential effect
In our opinion, the issue of public interest defences requires urgent rectification. Given the existing delays associated with the review of Commonwealth secrecy laws, we are concerned the issue may not be properly addressed for some time. However, we support the Committee's recommendation that any new public interest defences should be based on s 122.5(6) Criminal Code. The Criminal Code defence is quite broad, and only requires a journalist to prove they were engaged in the business of reporting news and that they reasonably believed publication was in the public interest.
We also welcome the prospect of a formal consultation mechanism which would allow journalists and media organisations to consult with agencies without the threat of investigation or prosecution. However, for it to work properly, we consider it should be enshrined in legislation and clarify that the media organisation is not bound to follow the advice of the intelligence agency.
Protection for sources and whistleblowers
Proposed changes
Harmonisation of shield laws
The protection of confidential sources, as enshrined in the MEAA Code of Ethics, is a fundamental tenet of journalism. Yet shield laws, which allow courts to excuse journalists from having to reveal their sources, do not adequately protect this principle. Submissions noted that Australia's shield law regime is inconsistent, incomplete and fails to grant absolute immunity.
In response, the PJCIS has recommended the National Cabinet should promote the harmonisation of state and territory shield laws. In doing so, greater consideration should be given to public interest considerations, including who should be treated as a 'journalist' and a 'source' in the digital media environment.
Reviews of FOI and public-sector whistleblowing regimes
Given the barriers faced by journalists when lodging FOI requests, the PJCIS has recommended the promotion of a uniform FOI culture and the consistent application of exemptions across departments.
The Committee also called for the Government to simplify the Public Interest Disclosure Act 2013. The rationale appears to be that if a proper whistleblowing framework exists, individuals will not need to resort to the media to air their grievances.
Potential effect
Both recommendations are vague and highly aspirational. It is unclear whether they will result in meaningful change for the media. The application of the FOI framework has long been problematic and requires a clear reform strategy.
However, we agree with the Committee that shield laws need harmonising. In doing so, we believe National Cabinet should adopt the version contained in s 126K Evidence Act 2008 (Vic). The Victorian model extends the privilege to investigations and non-curial proceedings, as recommended by the ALRC. In contrast, the Commonwealth version only applies to court proceedings and therefore fails to adequately protect the anonymity of sources.
Please contact MinterEllison with any questions in relation to the above, or for advice on Australia's media laws.