Media freedom an ongoing vulnerability, legal bodies say

By Tony Zhang|28 May 2020
Pauline Wright and Greg Barns SC

Australia’s legal bodies have applauded the decision by the Australian Federal Police (AFP) to not press charges on Annika Smethurst but say they are concerned about the ongoing vulnerability of public interest journalism.

Law Council of Australia president Pauline Wright said the LCA firmly believes that journalists should not be exposed to law enforcement investigations and potential criminal liability, simply for doing their jobs.

Ms Wright reiterated that the execution of search warrants against Ms Smethurst and other members of the Australian media, and the exposure of those people to protracted investigative processes, have shone a spotlight on the extent to which the powers of law enforcement and intelligence agencies can encroach on the right to freedom of expression, as espoused through a free, independent and robust press.

The AFP deputy commissioner of investigations, Ian McCartney, told reporters in Canberra on Wednesday, 28 May the case involved a “serious breach” of the law, involving the release of “top security” national security information that “needed to be investigated”.

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But he said police had decided to finalise the investigation because there was insufficient evidence to refer the alleged leak for prosecution.

In April the High Court ruled that the warrant used to raid Ms Smethurst’s home was invalid, but Ms Smethurst and her source were still left exposed to prosecution because the court did not order police to destroy the material seized. 

Mr McCartney confirmed that police had considered that material before reaching the decision to drop the case.

He said investigators had always acted in good faith and denied there were any political considerations in the decision to drop the investigation.

The Australian Lawyers Alliance said they are not surprised that there is insufficient evidence to lay charges against Ms Smethurst.

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“The pursuit of this journalist, and the raid of her house, [were] intimidating behaviour by the police designed to harass and bully journalists and their sources,” said criminal justice spokesperson for the Australian Lawyers Alliance, Greg Barns SC. 

“The behaviour of the AFP in this case has highlighted and brought to public attention the importance of media freedom.”

Mr Barns said that journalism has an important role to play in ensuring that the government operates within the confines of the law and in the public interest. 

“True government accountability is possible only where journalists are able to report in a frank and fearless manner,” Mr Barns said.

“This requires vigilant protection of both the rights to freedom of speech and privacy for journalists and their sources.

The Law Council echoed similar sentiments and said that it remains concerned that Australian secrecy laws, particularly those conferring powers on law enforcement and intelligence agencies, do not contain adequate safeguards for journalists to report on matters of importance to the Australian public, and may go further than is reasonable and necessary to protect legitimate national security interests.

The LCA said they were actively participating in the current inquiry of the parliamentary joint committee on intelligence and security (PJCIS) into the impact of the exercise of law enforcement and intelligence powers on press freedom in Australia and have made numerous recommendations.

These include supporting amendments to provisions authorising the issue of warrants regarding the investigative actions of journalists or media organisations, the introduction of a legislative public interest test, the appointment of superior court judges as issuing authorities, among others.

“We look forward to the forthcoming release of that inquiry report, and the opportunity it will provide to carefully reconsider the ways in which secrecy legislation and related provisions can operate to keep Australians safe while also protecting and respecting the role of a free press,” Ms Wright said.

Media freedom an ongoing vulnerability, legal bodies say
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