This is no surprise to those that work in the media and in media law. It is due to a combination of a minefield of suppression orders coupled with the threat of contempt of court charges, outmoded judicial interpretation of our defamation laws, broad espionage and secrecy offences, and the recent addition of powers to intercept encrypted messages — to name a few.

The New York Times was right to question whether Australia may be one of the most secretive democracies in the world. Without necessary reforms, there is despair that the fourth estate will be reduced to regurgitating media releases, unable to fund and defend bold investigative journalism.

Journalists rely on reputations of trust and integrity — this enables them to promise a source confidentiality, but there is a real question as to whether this can truly be guaranteed within Australia’s current framework. This promise used to be to not “name” a source, but now it means actively protecting their metadata, using encrypted communications and involved efforts to reduce the digital trail, for fear of surveillance and interception.

As successive governments have been emboldened to implement far-reaching laws in the name of national security, the ability for journalists to uphold their ethical obligation to protect the identity of sources, where they request anonymity, has been eroded.

This is an issue that must be addressed to ensure we have a robust and free press.

One of the few key protections is section 126K of the Evidence Act which states that where a journalist has promised an informant not to disclose their identity, they are not compellable to give this evidence.

This seems encouraging, but in application, this protection can be trumped if there is another public interest at play — for example, “national security”. As a consequence, this provision is simply not enough.

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This becomes of even greater concern when viewed in the context of the breadth of espionage and secrecy offences introduced last year that clearly target whistleblowers speaking out against the government. This regime includes offences with maximum penalties of 25 years in jail for where a person even “deals with” information that has a security classification or concerns Australia’s national security, and is reckless as to whether their conduct will prejudice national security through causing the information to be publically available.

Following the AFP raids, it was made clear that the fact journalists or whistleblowers are acting in the public interest when they shine a light on corruption, improper or questionable activity does not protect them from investigation under the laws.

Acting AFP commissioner Neil Gaughan stated in his press conference that “the issue of whether or not the public has the right to know is really not an issue that comes into our investigation process”.

Well, in a democracy, it should.

It is encouraging to see the ABC challenge the validity of the AFP’s warrant. There is precedent for this: The Age successfully obtained an injunction that prevented the Victoria Police removing documents and computers from the premises in 2011.

This is a good first step, but ultimately, an inquiry into the laws that diminish freedom of the press in Australia is required. Legislative change is needed to ensure that reports in the public interest are published without fear of criminal prosecution.

Adequate protections for journalists and whistleblowers cannot continue to be a legislative afterthought for Parliaments. In the face of the criminalisation of investigative journalism, we need to condemn efforts to quiet those brave enough to speak out and report the truth.

When the public has a right to know, journalists have a right to be protected.

Peter Bartlett is a partner and Tess McGuire is a graduate (both pictured) in the media law practice group at MinterEllison.