Legal frictions
The law has failed to keep pace with modern journalism and risks becoming a drag on democracy.
If you step back 20 years, the way daily journalism was conducted is unrecognisable today. Digital disruption and open platforms have seen an unprecedented scale and speed of reporting, more frequent online and social media updates, the widespread use of video and data, and radically different newsroom structures. At the same time, the economics of news gathering and distribution have completely altered.
Yet the legal framework within which journalism functions remains unchanged. It has become an anachronism that is a choke on open reporting and commentary. At stake is the ability of a responsible media to expose wrongdoing in the main thoroughfares of life — politics, government administration and the corporate world, as well as to report the hourly news and to comment rigorously.
A free, open and energetic democracy demands no less. Instead, the media is significantly disadvantaged by laws that have failed to adapt. An analysis of the most expensive and uncertain part of the legal landscape for journalism — defamation cases — shows that in the 10 years to the end of 2017, media organisations have paid out $17 million in damages verdicts, with legal costs likely to be in excess of that amount.
That is the tip of an iceberg that shows no sign of melting. If out-of-court settlements are included then the damages would be multiples of that amount, with media publishers unsuccessful in 57 per cent of the cases they have defended in court or settled.
Aside from the chilling uncertainty of defamation law, other elements that consistently confront a free media include the courts’ tribal hostility to journalists, prospects for privacy laws, and the impact of state secrecy and its blunt instruments. Each of these elements merits our watchful attention.
Defamation
Rebel and her damages
Last year’s Rebel Wilson defamation case, in which the trial judge awarded more than $4.7 million in damages to the comedy actress, gave publishers and their lawyers a real shock. The payout far exceeded anything previously awarded for a defamation case in this country, and was sufficiently serious that Australia’s main media organisations unsuccessfully sought to intervene to argue against an award of damages on this scale.
Unhappily for Ms Wilson, on 14 June this year, the Court of Appeal in Victoria took away the bulk of that amount. The appeal judges said there was insufficient proof that stories in Bauer Media’s Women’s Day and Australian Woman’s Weekly had caused Wilson to lose opportunities for film roles. This removal of economic damages cut her payout by $3.9 million, leaving general and aggravated damages of $650,000, which the court reduced to $600,000.
Ms Wilson is now seeking special leave of the High Court to appeal against that finding.
What remains troubling for media defendants is the subversion of the statutory cap on general damages for defamation, which currently sits at $389,500, because the court confirmed that where aggravated damages are awarded along with general damages, that cap can be exceeded.
Now that the potential for significant blowouts in damages against the media has been endorsed by an appeals court, it’s inevitable that those suing for defamation will claim elements of “aggravation” by the media. These can include the conduct of the journalist in obtaining a story; defendant behaviour that is not bona fide; the media unsuccessfully pleading a defence; or even, heaven forbid, publishing with the intention of “making a profit”.
#MeToo
In the wake of the Harvey Weinstein sexual scandal in the United States, there are a number of Australian #MeToo-related cases winding their way through the courts, most notably Geoffrey Rush v Nationwide News and Craig McLachlan v Christie Whelan Browne, Fairfax & the ABC.
Rush, who has brought his action in the Federal Court, claims he was defamed by a Daily Telegraph story that alleged he had engaged in “inappropriate behaviour” with an actor in a 2015–16 Sydney Theatre Company (STC) production of King Lear. The publisher has encountered difficulties defending the case at the preliminary stage. Justice Michael Wigney struck out the truth defence on the basis that it was “vague and imprecise” and refused the newspaper leave to cross-sue its source, the STC.
In relation to the alleged touching by Rush of his co-star, Eryn Jean Norvill, the judge pressed for more answers: “What exactly was the ‘touch’? What part of Mr Rush relevantly touched the actress? Was it one or both hands or some other part of his body? And what part of the actress’s body was touched? What was the nature and duration of the touch?”
Justice Wigney also thought there might be an innocent explanation for Rush to be in the STC’s women’s bathroom at the same time as Norvill during the production’s wrap party. The claim is that he stood outside the cubicle she occupied until she told him to “fuck off”.
The judge questioned whether Rush knew she was in the bathroom before he entered. “If Mr Rush had another reason for entering the bathroom it might not be able to be characterised as ‘inappropriate’.”
He also commented adversely on the Telegraph’s headlines “King Leer” and “Star’s Bard Behaviour”, saying: “It would seem that the sub-editors, or whoever it was responsible for the headlines and sub-headlines, simply could not help themselves.”
More recently, in the Craig McLachlan case, the defendants successfully applied for an order to protect the identity of one of their witnesses. Justice Lucy McCallum, who is hearing various pre-trial applications in the NSW Supreme Court, pointed to the “infinite complexity and ambiguity of sexual and sexualised behaviour”, and also “the context of unprecedented public attention to such matters, the debate of which has seen the expression of views ranging from those of people who would dismiss the most inappropriate and unacceptable conduct as being ‘only a joke’, to those of the champions of the ‘#MeToo’ movement …”.
McLachlan says the Fairfax and ABC stories impute he is guilty of indecently assaulting, sexually harassing, indecently exposing himself to, and bullying female cast members of the 2014 stage production of The Rocky Horror Show. One of the complainants, Christie Whelan Browne, is also a defendant in the case.
Similarly, in France, it has been reported that Sandra Muller, one of the founders of the French #MeToo movement (known as #balancetonporc, or “rat on your pig”), is being sued for defamation by a former boss who she publicly accused of sexually harassing her. Meanwhile, in Canada, the former leader of Ontario’s Progressive Conservative Party, Patrick Brown, is suing CTV News for reporting allegations of sexual misconduct made against him by two young women.
Back home, Leanne Russell, the West Indian cricket team masseuse and source for a story claiming cricketer Chris Gayle exposed himself to her in a dressing room in Sydney during the 2015 World Cup, was subjected to some aggressive cross-examination in his consequent defamation trial. Although Fairfax, The Age and Federal Capital Press thought they had a strong truth defence with a good witness, a jury thought otherwise. The outcome in that case brought on a wave of anxiety about juries deciding defamation cases, almost as great as the anxiety expressed about judges deciding them alone.
In cases like these, we’re seeing a vortex of litigation where the media that publish allegations of sexual victimisation are sued and, if the allegations are to be proved true, the alleged victims may be subjected to gruelling cross-examination about their lives.
Defences are lacking
Whatever lawyers, judges or juries might think, the media believe stories that are a matter of public interest should be published and defended. The problem is that journalism does not have an effective qualified privilege defence under Australian defamation law, where it can argue that even if there are mistakes in reporting a story, it is nonetheless defensible because it is in the public interest and reasonable steps were taken to get it right. Instead, under the current legislation there are at least 10 potential snags that could shred a defence.
Publishers are not adequately armed to defend public interest stories, and that might in part account for the comparative rise of lighter, fluffier, less relevant items of “news”. By way of contrast, in the UK the 2013 Defamation Act gives defendants a fighting chance, as there is a serious harm threshold to pass before defamation proceedings can commence, and a better public interest defence based on the “reasonable belief” of the publisher.
Larina Mullins, editorial legal counsel at Fairfax, who has worked previously in the News Corp and BBC legal departments, explains that she advises journalists from the moment they commence working on large investigative pieces.
Looking ahead to any potential litigation, she notes what evidence can be mustered — what witnesses can come forward, what sources must remain confidential, the available documents and what documents would be further available under subpoena.
“That can be a very different approach to the journalists’,” says Mullins, “because they’re just trying to get us the information and trying to find the story and to understand the motivations of people. I have a different approach and I am trying to work with them on that.
“I am thinking about evidence almost always… The journalists are always talking about public interest and I keep telling them it’s worthless to me because we just don’t have a defence for that.”
Inevitably, it’s truth or nothing when it comes to defending your work, but that too has its obstacle course of difficulties. There are usually a variety of truths. Witnesses can disappear or can be made to look foolish, unreliable or worse under ferocious cross-examination. Other imputations that are more serious than the ones proved true may not be true. Lots of things can go awry in a truth case.
Publishers are also often wrecked on the rocks of legal defences such as honest opinion and contextual truth.
Research prepared by Nick Bonyhady from the Gazette of Law & Journalism’s database of defamation actions shows nearly 300 cases that involved the media as defendants over the 10 years from 2008 to 2017.
When it comes to court hearings, media defendants came out slightly ahead in terms of favourable verdicts (29 per cent) compared to those who commenced proceedings (20 per cent). Regrettably, that’s not the full story, because most of the action takes place outside courtrooms. Recording, say, three quarters of the out-of-court settlements as plaintiff “wins” — a conservative estimate, because most if not all complainants would have received some form of recompense to make the case go away — then that takes plaintiff wins to 57 per cent of the total.
Keep in mind this does not include the significant number of complaints that pour into the offices of media lawyers on a daily basis, and are settled before proceedings are commenced.
Then there is the question of online platforms. The law is struggling to decide whether Google and its search engine is a publisher or whether, along with Facebook and Twitter, it has immunity from being sued because it is not curating what is published on its platforms. At this point it also remains unknown whether readers’ comments posted on the Facebook pages of news publishers make those publishers liable for third-party comments.
Reform
There’s a chink of sunshine in the form of a long overdue statutory review of the Defamation Act (2005), conducted by the NSW Department of Justice, and now the Council of Attorneys-General has given NSW the job of coming up with root-and-branch reforms to defamation law. Submissions to the Justice Department’s review closed seven years ago and don’t address the most recent technological developments. Nonetheless, among the recommendations that stand out we find:
• A serious harm test as a threshold step for defamation actions would discourage trivial matters proceeding to court. Already, in England and Wales this test is under attack as plaintiff lawyers argue that “serious imputations” are enough to clear the harm threshold. The proposed test might also incorporate “proportionality” considerations, meaning an action may be stayed or dismissed if the cost of the action and the vindication sought by the plaintiff are disproportionate.
• A single publication rule. This would be a significant improvement for online news publishers by requiring plaintiffs to bring their actions within a year of the material first being posted. At the moment, plaintiffs can commence proceedings against online articles that remain on news websites years after first being published, by which stage the evidentiary material for the defence may have all but vanished. The Right to Know Coalition, representing Australia’s major media organisations, has argued that the absence of a single publication rule exposes publishers’ online archives to actions.
• “Safe harbour” and “take-down” provisions should be developed to protect hosts and carriers of digital content from liability for content produced by third parties.
• Reform of the contextual justification, qualified privilege and opinion defences, although the report contains the proviso that further consideration is needed.
Unfortunately, case management, costs, multiple actions directed at the same material and forum shopping do not appear to have been considered, yet these too should be on any reform palette.
The reform process will be long and slow. If uniform legislation is the aim, then all the states and territories will have to be on board with any changes, unless the Commonwealth decides to try and occupy the field and pass a national law.
Also, there are powerful players, such as the NSW Bar Association, whose recommendations would take us back to the defamation dark ages. In their submission, a document decidedly hostile to the interests of a free press, the barristers argue that:
- large corporations should have the right to sue for defamation
- the relatives of dead people should be able to sue in defamation and actions against the estates of deceased defendants should be allowed to proceed
- a plaintiff should have the right to have a jury decide damages
- the truth defence should be qualified with the re-introduction of a privacy protection
- the statutory cap on non-economic damages be removed.
The bar’s submission is a document decidedly hostile to the media.
Suppression
There is concern that well-credentialled, high-profile citizens may be able to persuade courts to suppress reporting of criminal proceedings that they are defending. Suppression orders are made in Victoria under the Orwellian Open Courts Act 2013, legislation that has been applied increasingly to close off the courts from the community they serve. Its counterpart in NSW has a more honest title, the Court Suppression and Non-Publication Orders Act of 2010.
In the tussle between “open justice” and the “interests of justice”, the former has one hand, sometimes both, tied behind its back. Jeremy Bentham, the straw man of open justice, must be spinning in his glass case at University College London.
An important reason for suppression orders is to quarantine jurors from information that could prejudice their verdict. Jurors are seen as susceptible to influences that could “contaminate” the trial process, where as much evidence may be kept out as is allowed in.
Court orders made under the legislation extend to protecting parties or witnesses from distress or embarrassment, by preventing the publication of photographs, medical reports, the names of witnesses and details of evidence. (There are other prohibitions under separate legislation against revealing the identity of children and victims in sexual assault cases.)
Since the advent of legislative underpinning for these orders, suppression has become almost a knee-jerk responses to any request to cut off public reporting of court proceedings. While media organisations and lawyers working in NSW might receive email notifications for five or six NSW court suppression orders in a week, this is small beer for their peers in Victoria. There, up to eight a day could be notified.
According to a tally kept by Gina McWilliams, senior legal counsel at News Corp Australia, Victoria issued 444 suppression orders in 2017, followed by NSW with 181 and South Australia with 179. So far in 2018, the rate has not subsided — to May 29, 2018 there were 150 in Victoria, 57 in NSW, 52 in South Australia and the Northern Territory catching up with 22.
Of course, if juries for state criminal trials were abolished, court suppressions would be largely out of business. The sheer volume of these orders indicates that insufficient faith is put in judicial directions to juries to be true to their oath and not to be deflected by material that is out of bounds. It’s an odd dilemma — the justice system wants to retain juries, while it doesn’t completely trust them.
Mullins at Fairfax says the legislation grounding the suppression order regime means it “becomes this self-fulfilling prophecy that orders will be made, no matter how many safeguards and requirements and hurdles you put into the legislation. There it is, let’s use it. And they have, hundreds of times a year.”
Following submissions from media organisations and lawyers in Victoria, that state’s attorney-general, Martin Pakula, commissioned former appeals judge Frank Vincent to look at the Open Courts Act. Vincent reported in March this year with 18 recommendations, 17 of which the government has agreed to support, with one under consideration.
Vincent sensibly proposes that courts and tribunals must give written reasons for making a suppression order, with actual reasoning, not just a recitation of the relevant section of the act. That should help discourage judges dispensing orders like confetti.
Also, he wants all suppression orders treated as interim for five days, so that interested parties can make submissions. He further recommends that relevant convictions of youth offenders can be reported if the person continues to engage in serious offending as an adult. In addition, adult victims of sexual assault or family violence should be permitted to disclose their identity after an offender has been convicted, including cases where the victim had been abused as a child.
In NSW, the attorney-general, Mark Speakman, also put his toe in the pond in relation to sexual offence trials, by guiding a new law through state parliament whereby “embarrassment or distress” will no longer be a sufficient basis for the suppression of a defendant’s identity.
After all, if it is understood that the courts are a branch of government, which they are, yet are uniquely independent of the executive or legislative arms, then transparency of the legal process is just as important as openness and accountability of the political regime.
As former High Court justice Michael Kirby once said, “It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders…”
Significant public figures who are caught in the machinery of criminal justice have been afforded extra care in an effort to keep their trials on the straight and narrow. Prior to the criminal trial of former NSW politician Eddie Obeid, for instance, the state’s Director of Public Prosecutions (DPP) required the media to stop publishing the widely known findings of the Independent Commission Against Corruption in relation to the accused. It must have been imagined that if there was no mention of the findings, then the jury might have forgotten they ever existed.
Accompanying this dispatch from the DPP was a spreadsheet itemising 1800 news articles about Obeid that it said should be removed from the internet. Although many in the mainstream news business complied, plenty of the disturbing aspects of Obeid’s career remained freely available online.
And there’s the rub: suppression orders are effective at suppressing information when it is the preserve of basically obedient mainstream publishers, but when it remains available through open media sources it renders futile judicial efforts to protect the jury system.
Another memorable moment in the futility of take-down orders was in 2014 during the Securency banknote bribery case. The Supreme Court of Victoria, on an application by the Department of Foreign Affairs and Trade under the Open Courts Act, made an order to suppress the names of 17 leading politicians and government officials in the region. This included “any current or former prime minister of Malaysia”, the president of Vietnam and the president of Indonesia and his predecessor. The order was a “super-injunction”, because even the fact it had been made could not be reported.
WikiLeaks found it too good to ignore, publishing the forbidden material on its website and tweeting about it to its millions of followers, thereby rendering the super-injunction futile. As a futile order cannot be “necessary” in the interests of justice, it was ultimately revoked.
(Americans are puzzled by all of this. Their First Amendment means that the wide ambit of media-restraining edicts wouldn’t get off the ground, yet their courts still manage to dish out justice, presumably in accordance with the law.)
Fact is, the modern business of publishing is so atomised, feral and anarchic that it cannot be entirely contained by orders from people in wigs who assume a polite and obedient acceptance. Whereas legacy media companies are big, bulky and conspicuous, and have assets that can be attacked by courts, smaller, niftier fry can get away with ignoring these ukases.
In those parts of the common law world without constitutional free speech protections, what we’re seeing is nothing less than a clash of cultures. Or is it a clash of generations? Either way, it has got a way to go as an unruly open media shows no sign of respecting the old boundaries of the judicial patch.
Privacy
Actions in privacy have been hovering around the edges of the legal landscape for years. Those in favour include unlikely allies such as various Law Reform Commissions and Barnaby Joyce MP.
Australia’s former federal attorney-general, George Brandis, said he was opposed to a statutory tort of privacy, the essential components of which, as formulated by the Australian Law Reform Commission, are: the plaintiff has a reasonable expectation of privacy; the invasion is serious; no actual damage need be shown; and the public interest in privacy outweighs countervailing public interests, such as free speech.
The proposed remedies in the event of a successful action for a serious invasion of privacy are troubling: damages, including aggravated damages; an account of profits; injunctions; orders for apologies and corrections; delivery and destruction of the offending material; and declarations.
Inevitably, should a government one day introduce a privacy law along those lines, a reputational tort that combines both defamation and privacy would emerge, allowing injunctions to be backended into what are essentially defamation cases. Traditionally, injunctions have not been available in defamation so a statutory privacy tort would widen the scope for take down orders or orders to stop stories appearing altogether.
The fuzzy boundary between privacy and defamation arose when Sydney socialite Shari-Lea Hitchcock sued Fairfax over a Sun-Herald article, which she claimed imputed she had behaved “in a nauseating manner with a married man” and performed an “obscene dance” at a social function.
Justice Henric Nicholas struck out Fairfax’s defences saying that Hitchcock’s behaviour was at a “private” social function and “self-evidently” not a matter of public interest. The Court of Appeal overturned that, saying that “by courting public attention the respondent had acted in a way which inherently, expressly or inferentially invited public criticism or discussion”.
Having courts dictate the publication of corrections, taking possession of reporters’ materials, plus issuing orders to stop the presses takes us to a foreign place; one where journalism as we know it would be significantly unworkable.
None of which is to say that there are not media invasions that make you wince. In 2010, broadcaster Ben Fordham and his then producer at Nine’s A Current Affair, Andrew Byrne, escaped conviction under the Listening Devices Act. The breaches involved the secret recording of conversations between the former mayor of Waverley, Jim Markham, his nephew Adam Tolmie and Fordham.
In one instance, known as “the car conversation”, Fordham, posing as a hitman, is seen discussing with Markham the kidnapping, torture and murder of a male escort known as “Alex”.
The program went to air in two bursts on 28 and 29 May 2008. Justice Elizabeth Fullerton found Fordham and Byrne guilty of breaches of the Act but declined to record a conviction after an affidavit from solicitor Mark O’Brien was presented during the sentencing hearing. O’Brien astounded the judge by saying he had advised Nine that broadcasting the material would have been “unlikely” to constitute a breach of the Listening Devices Act.
Jane Doe v ABC was on its way to the High Court for a ruling on privacy in a case where the broadcaster, in breach of a statutory provision, had named a rape victim in a radio broadcast. Judge Felicity Hampel in Victoria’s County Court had awarded Jane Doe $234,000 for breaches of the legislation and for the ABC failing to exercise a duty of case to protect her identity.
The following year, in 2009, Victoria’s Court of Appeal in Giller v Procopets refused to recognise a tort of invasion of privacy in a sex tapes case. Justice David Ashley said there could be difficulties defining what is meant by privacy and other causes of action might be available.
Indeed, actions for breach of confidence are always lurking around the corner.
The Press Council and the Australian Communications and Media Authority (ACMA) both have codes that include provisions about breach of privacy. Recently, the Press Council found reasonable expectations of privacy were not observed in a Sun-Herald story from 2017 about a university student who had died as a result of an eating disorder. Despite her family’s request, it had included details identifying the young woman and her family. There was a similar finding in July 2018 that The Sydney Morning Herald breached a murder victim’s privacy by publishing a photo of him taken from a funeral booklet.
Meanwhile, ACMA’s findings about privacy in the case of the former NSW minister David Campbell, who’d been outed by the Seven Network in 2010 when he visited a gay steam room in Sydney, were so muddled as to get the broadcaster off the hook.
The NSW Bar Association, in its submission on defamation to the Department of Justice, said that a “public interest” component should be reintroduced into the defence of truth. This would bring a privacy element back into the defence so that, say, famous cricketers whose extra-marital affairs were about to be exposed could get a unique form of “defamation injunction”.
The Bar said that not having a public interest requirement for publication included in the 2005 Defamation Act would permit the media to invade people’s privacy “with impunity”. This hasn’t happened. Although uncertainty surrounds the future of a tort for serious invasion of privacy, it’s not as though litigants are unwilling to try other avenues.
State secrecy
When it comes to state security, journalism enters a zone of significant uncertainty. What can and can’t be reported is in the ether or, even less predictably, in the hands of judges.
The espionage and foreign interference legislation was introduced into parliament promptly in the wake of the passage of the equality amendments to the Marriage Act. The law is ostensibly intended to curb foreign influence on Australian politics and contains a raft of measures aimed at cracking down on activities related to espionage. However, its operation has significant impacts for how journalists report on some of the most critical issues of our time.
This new law represents a significant expansion of the state’s power to scrutinise journalism and to prosecute media companies.
The legislation criminalises both dealing with or publishing information that is inherently harmful, or likely to cause harm to Australia’s interests, with penalties of up to 20 years in prison. It also widens the definition of “national security” to include economic and trade matters. Importantly, a journalist may face prosecution for merely obtaining information from a source or whistleblower.
The original Bill carved out very limited exceptions for journalists acting in the public interest and engaging in “fair and accurate” reporting. In February, the government acknowledged the Bill’s potential chilling effect and introduced changes, principally removing the requirement that journalists must demonstrate that their work is “fair and accurate”, and instead providing a defence of a reasonable belief that the work is in the public interest. The amendments expand that defence to editorial and support staff as well as journalists.
But there is no blanket exemption for journalism, as was requested in a submission by the Joint Media Organisations, of which MEAA is a member. ASIO’s director-general, Duncan Lewis, expressed fears that any exemption would allow foreign spies to take advantage of journalists.
The legislation states that before a journalist can be prosecuted, the head of the relevant agency must certify that the information is classified material, and the federal attorney-general must give consent. However, the fact the attorney-general could be making decisions about the prosecution of journalists introduces a disturbing political element into the criminal process, as we’ve seen in the case of the prosecution of lawyer Bernard Colleary and Witness K.
Journalists may be prosecuted for “dealing with” classified information, even where that information is not published. However, the final report from the joint parliamentary committee held that a successful prosecution would have to prove that the dealing had been “intentional”.
“Intention”, though, is very much in the eye of the beholder. The joint committee’s report said that the innocent receipt of information, such as opening an envelope or viewing a download, would not be caught by the law, but then suggested that would depend on the particular case.
The federal Attorney-General’s Department told the joint committee that viewing information would rarely occur in isolation of other dealings with the material, and those other dealings may fall within the offence. It would be improbable for a journalist to simply view a document without “dealing” with it in some way.
So if a journalist received classified information and then intentionally examined and scrutinised it in order to determine whether it was, in fact, classified, at what point does this cease to be the innocent receipt of information and become criminal dealing?
The Joint Media Organisations’ submission posed a similar question, which was not adequately answered in the joint committee’s report. The law, as written, does not exclude the mere receipt of the information, nor does it provide a clearer definition of when a person “deals” with information. A core element of this criminal offence is left vague and rather too open-ended.
While the requirement that journalists must prove that their work is fair and accurate has been removed, they still must show they are dealing with the information in the public interest. But the meaning and scope of the “public interest” test is also uncertain.
In its submission to the inquiry, the Law Council of Australia recommended the legislation outline factors that would help determine if holding the information was in the public interest, such as “promoting open discussion of public affairs, enhancing government accountability or informing the public about the policies and practices of agencies”.
The Attorney-General’s Department ultimately rejected this submission, stating that a defendant would have to provide arguments and evidence suggesting a reasonable possibility that the information was held or dealt with in the public interest. Once this evidential burden was discharged, it would then be up to the prosecution to prove beyond a reasonable doubt that such dealing was not in the public interest.
Critically, the kind of journalism that these laws are likely to deter — reporting on secretive policy decisions and misconduct at the highest echelons of government — is critical to the maintenance of accountability.
Guardian Australia editor Lenore Taylor, for instance, has suggested that recent Fairfax and ABC investigations into potential war crimes committed by the SAS in Afghanistan could trigger criminal sanctions under the new regime.
It’s feasible the law could be used to restrict reporting on the offshore processing of asylum seekers and border protection measures. Previous attempts to gag doctors on Nauru and Manus Island and refer journalists to the Australian Federal Police indicate that the government is not beyond weaponising existing laws to maintain rigorous secrecy around its detention regime.
But even without being used against journalists, the law has worrying long-term implications for the future of the media in Australia. Reflecting on his experiences reporting during the George W Bush and Barack Obama presidencies, former New York Times journalist James Risen described a newspaper so spooked by pressure from the administration that it was reluctant to publish stories critical of the national security establishment.
In his recent memoir, veteran investigative reporter Seymour Hersh makes similar criticisms of New Yorker editor David Remnick’s decisions during the War on Terror.
This is not an exclusively American story. Earlier this year, the ABC obliged the government by handing back a trove of Cabinet documents found in two filing cabinets sold at a second-hand store in Canberra. The mere possibility of prosecution is sufficient to put pressure on the media to comply with government demands.
And let’s not forget the overreach of other legislation, including the criminal consequences of journalists reporting on ASIO “special operations”, or security agencies use of journalists’ metadata.
Determining how to deal with sensitive government information has always involved prudent editorial judgment. Journalists must weigh the public interest of disclosure against potential harms to national security. But the spectre of criminality hovering overhead will doubtless have a chilling effect on those decisions.
Richard Ackland is the editor of Justinian and the Gazette of Law & Journalism; justinian.com.au and glj.com.au. He is also legal affairs editor for The Saturday Paper and a columnist with Guardian Australia.
Nick Bonyhady prepared the defamation graphs, while Kishor Napier-Raman jointly authored the section on state secrecy.
Eric Lobbecke’s work appears in The Australian and he is currently researching digital drawing at UNSW Art & Design.
This article has been updated from the version that appears in the July 2018 print edition of The Walkley Magazine.
