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‘Press freedom must be fiercely protected’, says LCA
The Law Council of Australia (LCA) has condemned the raids on journalists and called for stronger definitions of what constitutes harm to national security.
Naomi Neilson
The LCA said the disclosure of classified intelligence information by journalists and by whistleblowers should be criminalised if it can be proven it is a real threat and is not in the public interest to publish information relating to government dealings.
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LCA president Arthur Moses SC said post-9/11, secrecy provisions were inconsistently developed and national security measures should be proportionate to any threats and should not unduly impinge freedom of expression or rule of law principles.
“Recent events have shone a spotlight on the extent to which the powers of security and law enforcement agencies potentially surpass legitimate aims of safety and national security and enter the realm of stifling democratic freedoms and liberties,” he said.
The LCA said a recent directive to the Australian Federal Police (AFP) by Home Affairs minister Peter Dutton to take into account “the importance of a free and open press” before the launch of investigations into journalists was a positive step.
However, the LCA said it will require the AFP to make difficult determinations on what constitutes as free press. Mr Moses said these freedoms should be protected by laws enacted by Australian parliament and “it’s clear more remains to be done.”
“This is a balancing act and one we must get right. Press freedom and freedom of expression are central to the Australian ethos and must be fiercely protected,” he said.
Mr Moses said that while the LCA recognises strong national security, protections are essential for the safety of Australians and disclosure of classified information should only be criminalised if it can be proven to “pose real harm to national security.”
“For this reason, the concept of ‘harm’ must be clearly defined and it must be more than merely embarrassment and reputational damage to the government. This would help protect against overuse and misuse of executive power,” he said.
In the submission to parliamentary joint committee on intelligence and security press freedoms inquiry, the LCA said there was a broad scope of journalistic conduct that may be innocuous but could be caught under espionage and foreign interference laws.
Mr Moses said LCA consistently supported the development and amendment of the secrecy provisions in line with the Australian Law Reform Commission’s Secrecy Laws and Open Government in Australia report. While some recommendations have been implemented, adoption of an express harm requirement had not.
“The inclusion of an express harm requirement in the criminal code, classifying what constitutes an offence and clearly defines ‘public interest’ is vital,” Mr Moses said.
“The criminal code should also be amended to place onus on the prosecution to establish a disclosure made by a journalist was not in the public interest.”
