The Parliamentary Joint Committee on Intelligence and Security published its long-awaited report on “the impact of the exercise of law enforcement and intelligence powers on the freedom of the press” in mid-2020. ABC Alumni press freedom spokesman Jonathan Holmes finds its proposed solutions “fall sadly short”.

The committee has not seriously considered a Media Freedom Act nor exemption from prosecution for journalists genuinely engaged in public interest journalism. Instead, theyrely on the use of Public Interest Advocates, whose activities are anything but Public, and who are not allowed to consult with the people on whose behalf they are advocating. And the Committee has left unremarked the use by the Australian Federal Police of an offence for which the ABC’s Daniel Oakes faces prosecution, and which threatens any journalist who receives any information of any sort from any Commonwealth agency.

By Jonathan Holmes, 1 August 2020

It is seven years since Australian special forces allegedly shot dead an Afghan man and his sleeping child in 2013 – one of the alleged war crimes still being investigated by the Inspector-General of the Australian Defence Force.

It is over three years since the ABC published details of that incident, and many others, in the so-calledAfghan Files, based on leaked secret and Australian Eyes Only documents.

The leak was referred by the Department of Defence to the Australian Federal Police.

More than a year later, in September 2018, a former military lawyer, Major David McBride, was charged with ‘stealing Commonwealth property’. McBride has admitted that he was at least one of the ABC’s sources. He was arrested in February 2019, and is currently on trial, on that and other charges, in the Supreme Court of the ACT.

Yet it was three months after that – and almost two years after the original publication – that the AFP conducted its notorious ‘raid’ on the ABC’s HQ in Ultimo. The documents they took away were sealed for some months, while the ABC unsuccessfully challenged the validity of the search warrant in the Federal Court. Meanwhile, the raids on the ABC, and the day before, on the home of Sunday Telegraph reporter Annika Smethurst, caused an outcry in Australia and overseas.

In August 2019 the Joint Parliamentary Committee on Intelligence and Security (JCPIS) was asked by the federal Attorney-General to report on how “to better balance the need for press freedom with the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats.”

One year later – and months beyond its deadline – the Committee has at last reported. Meanwhile the AFP has sent a brief of evidence concerning alleged criminal behaviour by ABC reporter Dan Oakes to the Commonwealth Department of Public Prosecutions.

It is still possible that the CDPP will decide to prosecute Oakes for one or both of the crimes named in the search warrant: unlawfully receiving military information, contrary to S73A(2) of the Defence Act 1903 (maximum penalty unlimited); and/or dishonestly receiving stolen Commonwealth property, contrary to S132.1 of the Criminal Code (maximum penalty 10 years). Or, for that matter, with some other ‘crime’ entirely: there’s a shelf full of possible offences relating to ‘dealing with’ or publishing Australian secrets.

Three years since the ABC published Oakes’s story, and still nobody can make up their minds. If it wants to proceed with charges against Oakes, the CDPP is obliged, following a directive from the Attorney-General last September, to get his written permission. We don’t yet know whether it has sought that permission.

If and when it does, it might well get a “no”. Christian Porter has said that he would be “seriously disinclined” to authorise the prosecution of a journalist for doing his or her job.

But we still don’t know. More to the point, Dan Oakes doesn’t know. If you want to discourage journalists from publishing secrets, this long drawn out torture by ‘investigation’ is a great way to go about it.

Meanwhile, we have the JPCIS’s report.

In some ways, it’s an admirable document. Part 2, titled ‘Background and interactions between media, law enforcement and intelligence agencies’, sets out with some clarity and force the many complaints the committee heard from media organisations, lawyers, academics and individual journalists. It examines the ‘chilling effect’ on public interest journalism caused by the proliferation since 2001 of ever-more-draconian security legislation; the apparent determination by law enforcement, and especially the AFP, to target journalists as well as their sources for possible prosecution; and the difficulty that journalists face in assuring confidentiality to their sources when their own metadata, and that of their sources, can be accessed by law enforcement in pursuit of unauthorised leakers.

Among many telling quotations from witnesses to the inquiry is this one from the ABC’s Dylan Welch (2.104)

In my career I’ve never seen the kind of pressure on journalists than we’ve witnessed recently. For me over 15 years, while the legislative expansion is concerning, it is the growing appetite among the agencies and government generally to use their powers to investigate and prosecute sources and journalists that is most concerning.⁷

And this, from investigative reporter Ross Coulthart (2.106):

I had a bloke ring me some time back who worked in an immigration detention centre. He had a harrowing documented story he wanted to leak to me … I felt ethically obliged to warn him that no matter what I did to protect him, the record of his call to me would now be stored on a database and lead Government investigators back to him. He chose not to go public. I can’t blame him—and that’s why metadata [retention] is killing investigative journalism.

The committee clearly recognised that there is a problem. At par 2.73, for example, it states bluntly:

…the Committee notes that the prevailing argument to this inquiry from non-government stakeholders is that the balance in legislation and culture within the Australian Government has tipped away from transparency and engagement to excessive and unnecessary secrecy.

And at 2.125:

The Committee notes the indicators of the perceived ‘chilling effect’ that journalists have identified, both in their willingness to pursue and publish stories in the public interest due to the unknown threat of surveillance, investigation, defamation and prosecution, as well as the increasing unwillingness of sources to approach the media to utilise them as the ‘whistle of last resort’.

The problems, then, are clearly identified in the report. The committee’s proposed solutions fall sadly short.

Many submissions called for a ‘Media Freedom Act’ that would give some statutory force to the concept of a free press – a concept that is nowhere explicitly recognised in the Australian constitution or in any Bill of Rights. That suggestion is never seriously considered by the Committee.

Australia’s Right to Know (ARTK), the coalition of major media companies (including SBS and the ABC) and the MEAA, backed by many other submissions, including ABC Alumni’s, wants search warrants involving journalists and media organisations to be contestable: that is, the targets of the search should be forewarned, and their lawyers should be able to put arguments to the judicial officer who has the power to decide whether or not it should be granted.

The report goes into the pros and cons of contestability at some length. It acknowledges that in many cases (including the ‘raid’ on the ABC in June 2019) the target of the search is forewarned, and indeed that the AFP executes its warrant at a time agreeable to both parties.

Nevertheless, the committee weakly accepts, in the end, the argument by the Department of Home Affairs that:

Requiring subjects of search warrants to be provided with advance notice of the warrants’ execution may lead to situations in which essential evidential material is destroyed or transferred to a different location, creating major impediments for the investigation and prosecution of serious criminal offending. (3.56)

ARTK also pushed for an exemption from prosecution for journalists genuinely engaged in public interest journalism, rather than a mere defence. An exemption would mean that the prosecution would have to prove that a journalist was NOT acting in the public interest, rather than the journalist having to prove that they were.

Once again, the Committee has bowed to the argument put forward by the security services: that an exemption would enable nefarious foreign agents to pose as journalists, or to make use of genuine Australian journalists, to access secrets with impunity. No concrete examples of such deception are provided in the report, or (so far as I’ve been able to find) in the submissions.

Labor members of the Committee, for the record, disagree with the report in this respect.

Instead of contestable warrants or legal exemptions, the Committee has seized on a solution proposed by the Law Council of Australia – the bizarre notion that a Public Interest Advocate (PIA) can guard media freedoms.

PIAs already exist. The idea was the brainchild of then Attorney-General George Brandis when his bill to compel telecoms to retain electronic metadata for two years came under fire from the media. The Telecommunications (Interception and Access) Act 1979, which was amended to include the requirement for metadata retention, includes a section that requires law enforcement agencies who want to search a journalist’s metadata in pursuit of a source to get a special Journalist Information Warrant. Before they do so, they have to inform a Public Interest Advocate, a senior barrister or former judge appointed by the Prime Minister, no less.

The job of these fine lawyerly gentlemen (so far as we know, all PIAs so far appointed have been men) is to contest, if they see fit, the granting of a JIW on the grounds that it would contravene the public interest in a free press, and in investigative journalism.

But the process is anything but public. We are not entitled to know who the PIAs are. We don’t know how often they have contested JIWs, or whether they have ever done so successfully. Indeed, everything about JIWs is so secret

that a journalist who happens to discover that a warrant has been applied for, whether or not it has been granted, and whether or not he or she is the subject of the warrant, may not publish that fact. The penalty for doing so is two years in prison.

And because the JIWs are so secret, the Public Interest Advocate is forbidden to consult with the object of the warrant – the media organisation or journalist whose metadata is to be examined. So if there are particular reasons why a source ought not to be revealed; if there are particular aspects of the story that make it more than usually important to publish; if there is anything about the situation that is not already obvious, the PIA cannot find out about it.

So he or she is reduced, it seems to me, to making general arguments about the desirability of journalists being able to protect their sources, because that is fundamental to public interest journalism. Those are arguments that the officer considering the warrant should be taking into account in any case. The PIAs may or may not have had any effect – we don’t have the information to know. What is certain is that they provide a fig leaf, behind which the state can conceal its determination not to change the existing balance of power between ministers, mandarins and media.

Yet the committee grabbed the idea of extending the powers of the PIAs with relief. It recommends that all warrants targeting journalists should be contestable by a PIA – including search warrants authorised under the Crimes Act. But the ‘Advocate’ would still not be permitted to inform a ‘client’ that the warrant application exists. So he or she would still be restricted to bland generalities, or, as the committee puts it, to addressing:

– the public interest in preserving the confidentiality of journalist sources; and

– the public interest in facilitating the exchange of information between journalists and members of the public to facilitate reporting of matters in the public interest.

Well, whoop-de-doo!

The committee does go on to recommend that the PIA process should be somewhat less opaque. We still won’t be entitled to know who they are, but the committee recommends that we should be told how many PIAs there are, what state they reside in, whether they are QCs, SCs or retired judges (do we care?), the number of times they have contested a warrant, and the number of times a warrant contested by the PIA was not issued.

Better than nothing, but still absurdly secretive. The idea that this convoluted process will do much to reassure potential whistle-blowers, or render disclosure of Commonwealth information less perilous, for them or for the journalists they contact, is frankly absurd.

The committee makes other recommendations. One of them (Recommendation 6) is that “as part of its upcoming review of all secrecy provisions in Commonwealth legislation…the Attorney-General’s department specifically consider whether the relevant legislation adequately protects public interest journalism.”

There’s a problem with this, which the committee does not acknowledge, and which none of the numerous and learned submissions to the inquiry, other than that of the ABC Alumni, appears to have noticed. It is this.

One of the three offences of which David McBride is accused has nothing to do, on its face, with secrecy. Nor does one of the two offences of which Daniel Oakes is ‘suspected’, according to the AFP’s search warrant.

McBride is accused of the theft of Commonwealth property, contrary to S131.1 of the Criminal Code 1995. And according to the warrant, Daniel Oakes is suspected of ‘dishonestly receiving stolen property’ contrary to S132.1 of the Code.

As we pointed out in our submission, the use of this ‘theft’ offence to pursue the unauthorised leak of government information is profoundly disturbing. We don’t know what ‘property’ is involved – presumably, electronic information copied to a storage device, or bits of paper. But if the courts uphold the charge – and the fact that McBride has been committed for trial indicates that a magistrate found that at the very least the evidence is capable of convicting him – then the leaking of any information from a Commonwealth agency can render both the leaker, and the recipient, liable to prosecution.

The ‘property’ does not have to be secret or classified information; to commit the offence, the recipient does not have to publish it, merely to ‘dishonestly receive’ it. By resorting to this charge – and significantly, it was the first offence with which McBride was charged, months before additional charges of leaking secret information were added – the AFP has neatly evaded all the safeguards that have been recently added to Commonwealth secrecy legislation.

Against the offence of ‘dishonestly receiving stolen property’ there is no public interest defence, as there now is in the case of publishing secret government information.

And yet the media, the lawyers, the academics, and the committee have all ignored this alarming development. Will S131 and S132 of the Criminal Codebe included in the Attorney-General’s Department’s upcoming review of all secrecy provisions? Though it makes no specific comment about the ‘theft’ offence, the committee does list those sections among the laws that should be included in the review: let’s hope it makes sure that they are.

At least they are included in Christian Porter’s directive to the CDPP last September. If the Public Prosecutor wants to charge Dan Oakes with receiving stolen property, it will have to get the Attorney-General’s written permission.

But it’s profoundly concerning that whether Oakes is charged for an offence that carries a maximum sentence of 10 years imprisonment may well depend on the decision, not of a judge, but of a politician.

“Eternal vigilance by the people is the price of liberty”, as President Thomas Jefferson did not say, but President Andrew Jackson did. The Joint Parliamentary Committee for Security and Intelligence has let this one slip by, almost unremarked. Let’s hope that the Senate Committee on Environment and Communication, whose parallel inquiry into press freedom is expected to report shortly, does better.