What an irony. As the free world celebrates D-day and the heroes who kept it free from the Gestapo’s “knock on the door”, the international news on the BBC leads with the spectacle of the police raid on the ABC offices.
This could not happen in other advanced democracies, which all have constitutional protections for journalists and their sources of information, although of course it does go on in Istanbul and Rangoon – and now in Sydney. How did we become so out of sync on press freedom, invasions of which are the sign of a second-rate country?
The government can only say that police are independent. So they may be, but independence is no protection against police incompetence, illegality or plain stupidity (see, for example, the Victorian Police and “lawyer X”).
The safeguard against overzealous policemen is meant to be the courts – that is, the judges – but this warrant was granted by “a Queanbeyan court registrar”. The warrant that allowed police to ransack News Limited journalist Annika Smethurst’s home on Tuesday was said to have been signed in secret by an “ACT magistrate”. This could never happen in Britain where any police application for “journalistic material” must be approved by the Director of Public Prosecutions and then put before a judge, with the media represented, and on no account can it seek to identify journalistic sources.
How come we allow inconsequential officials to authorise police to intimidate news-gatherers?
Scott Morrison says “no-one is above the law” so why should journalists have any special right? For one simple reason, Mr Morrison – democracy depends on it. It depends on an informed public, which means that journalists must be free to cultivate and to protect sources of important information about government agencies and businesses, otherwise news will diminish to what is fed to them by public relations departments, press releases and ministerial statements.
The public has a right to know about such matters as the alleged murder of women and children by Australian soldiers and plans for secret surveillance of Australian citizens: to ensure that information of this importance sees the light of day, some special protection must be provided to news organisations.
This is now accepted in the US – the first amendment, backed by “shield laws” that protect journalists from police inquiries into their sources. It is accepted by the UK and by the 48 other countries that adopt the free speech guarantee in the European Human Rights Convention as a result of Goodwin v UK back in 1996. My client, a young journalist, had been ordered to disclose his source but the European Court ruled that protection of journalistic sources was essential to democracy, otherwise “the vital public watchdog role of the press” would be mooted and it’s duty to provide accurate and reliable information would be adversely effected.
Australia, unlike all other advanced nations, has no constitutional charter of rights protecting press freedom. However, the High Court, some years ago, discovered an “implication” in favour of free speech from the fact that the constitution establishes a democracy for which free speech is essential.
This week's raids have diminished Australia’s international standing, so Parliament must at least make amendments requiring police to obtain the DPP’s approval before any future attack on the media and requiring them to make an application to a real judge which the media can contest before any action is taken.
The behaviour of the AFP should be put under intense scrutiny by Parliament. Did it take legal advice before it applied for a warrant and from whom? Did it consider that the ABC had an obvious public interest defence? Does the AFP not consider the alleged murder of civilians by the Australian army is a matter of public interest? The ABC program went out in 2017.
Why the long delay if national security were really at stake? What if anything did police tell the court registrar? The source of the leaks, former military lawyer David William McBride, identified himself in March when he said he would defend charges on the grounds he had a duty to report the information. The leaker identified, were not the raids on the ABC entirely unnecessary?
And why did the AFP consider it necessary to ransack Smethurst’s home? If these and many other questions are not answered satisfactorily, then heads should roll.
Our first notable court decisions, following this precedent, were those of Chief Justice Frances Forbes, striking down Governor Darling's ill-tempered attempts to close down early versions of The Sydney Morning Herald. All judges, law enforcers and even Queanbeyan court registrars should be aware of this proud history and Parliament should make free speech a reality, not a “mere implication”, by enacting a proper shield law to protect journalistic sources and ending the secret rubber-stamping of national security warrants.
Better still, of course, would be a Charter of Rights of the kind that protects journalism in the US, Britain and Europe. Murdoch newspapers, which have long opposed it, should think again.
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