Right to Know still has a long way to go

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The opacity of the Australian public service, and its disposition to secrecy, has left journalists in a bind. Leaks constitute the oxygen of the secret state, but publishing that material remains a dangerous affair. With a rather weak implied constitutional right, that of communicating on political subjects, and insufficiently broad public disclosure protections, it was little wonder that the Right to Know campaign gathered force.

People vote at Queensland elections (Getty Images/Jono Searle)

The Right to Know, a few decades late in coming, was spurred on by dramatic and troubling raids conducted by the Australian Federal Police on the home of News Corp journalist Annika Smethurst and the Australian Broadcasting Corporation’s Sydney offices in June 2019.

Smethurst had published three articles in 2018 outlining proposed amendments that would extend the powers of the Australian Signals Directorate to covertly access the data of both foreigners and Australian citizens. The ABC had published classified material outlining alleged atrocities and misdeeds committed by Australian forces in Afghanistan in 2017. Both instances prompted raids by the Australian Federal Police made under the old official secrecy provisions of the Crimes Act 1914 (Cth).

As the AFP said of the 4th June 2019 raid on Smethurst’s home, ‘This warrant relates to the alleged publishing of information classified as an official secret, which is an extremely serious matter with the potential to undermine Australia’s national security.’

Both Smethurst and the ABC challenged their respective warrants. In February, the Federal Court found against the ABC, satisfied that the warrants executed in searching their Sydney premises were justified. Journalistic codes of ethics were, as Justice Wendy Abraham concluded, merely that, lacking the formal status of law. Nor could the implied right to communication on political subjects be exercised personally, being merely a ‘restriction on power’. The spectacle of officers going through records to identify whistleblowers and informants effectively dispelled any notion that sources could be protected.

Smethurst and News Corp fared better, but in the most restrictive terms. The High Court decision on 15th April found for her, unanimously invalidating the search warrant. The justices accepted that search warrants had prescribed conditions as outlined by the legislature, balancing the need for an effective criminal justice system with that of protecting an individual’s liberty from arbitrary invasion of their privacy. Warrants, to that end, had to have a clear object.

 

'The press victory, to that end, was more bitter than sweet, barely ruffling the feathers of the national security state.'

 

The warrant being challenged in this case ‘not only fails to identify any offence under s.79(3) [of the Crimes Act], it substantially misstates the nature of an offence arising under it.’ The offence did ‘not hinge on the interests of the Commonwealth, as the statement in the warrant suggests.’

The applications by News Corp and Smethurst to either deliver up or destroy the information taken from Smethurst’s mobile phone, or an injunction to restrain making that material available for prosecution, met a different fate. Such injunctions would normally only be ‘granted in aid of some legal right or interest or title to property.’ But no claim had been made to property in the USB stick of the AFP or a possible breach of privacy, merely a protection from the effects of trespass.

As Chief Justice Susan Kiefel, along with Justices Virginia Bell and Patrick Keane noted, ‘neither the common law nor statute law presumes that information unlawfully obtained may not be used in the investigation or prosecution of an offence.’ Even if obtained illegally, the public interest had to be weighed in bringing persons to conviction as against the perception that the courts were approving unlawful conduct. The troubling feeling here is that the justices may have just done that, leaving the way for the AFP to still avail themselves of supplying material for any prosecution of either News Corp or Smethurst.

Justices Michelle Gordon, James Edelman and Stephen Gageler took the minority view that the AFP’s USB in question containing Smethurst’s phone details be returned, with all other copies deleted, with Gageler noting that there had been an ‘unauthorised invasion of a common law right to property’.

The press victory, to that end, was more bitter than sweet, barely ruffling the feathers of the national security state. Smethurst might still face prosecution. ABC journalists Sam Clark and Dan Oakes, after 580 days, remain under investigation in connection with the June raids. As the Media Entertainment and Arts Alliance put it in a statement from federal president Marcus Strom, ‘The warrant has been quashed on a technicality but the powers that enabled the raid remain.’ The finding by the High Court that there was ‘no sufficient right that required protection’ in terms of handing over the materials implied a stark reading: there was ‘no protection for public-interest journalism in Australia.’

Looming in the background of the decision lie the unchallenged powers of the Attorney General, Christian Porter, in prosecuting journalists. These have been promoted by the Morrison government as impediments to abuse rather than inducements for executive overreach. A direction under the Commonwealth Director of Prosecutions Act issued in September 2019 makes the point that where the CDPP deems it in the public interest to prosecute a journalist, ‘the consent of the attorney-general will also be required as a separate and additional safeguard.’ The direction, explained Porter, was necessary ‘given the significance of a free press as a principle of democracy.’

This ignores the point that an attorney-general’s discretion remains non-judicial, a matter of executive calculation that favours state secrecy rather than the legal protection of the fourth estate. The Right to Know campaign has its work cut out.

 

 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Main image: Victorian newspapers in the Right to Know coalition blacked out their front pages (Getty Images/Quinn Rooney)

Topic tags: Binoy Kampmark, COVID-19, Right to Know

 

 

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Existing comments

You point out in your opening sentences that ‘The opacity of the Australian public service, and its disposition to secrecy, has left journalists in a bind’. The ABC constantly busies itself mounting its case for additional funding. So all ABC staff are paid by taxpayers. There has always been a similar, if denser, opacity about the salaries paid to ABC senior staff. The salary of Australia’s Governor General is public knowledge; the salary of the Chief Justice of the Supreme Court of Australia is public knowledge. As a taxpayer I can’t see why I don’t have a right to know each year what the salaries are of senior ABC staff (radio and TV presenters and senior management etc). If I know the salaries of the PM, the GG, the Justice of the Supreme Court and myriad others, why are the salaries of taxpayer funded ABC celebrities not public knowledge ? Are ABC high profile presenters paid more than the Chief Justice of the Supreme Court? If so, how come?
Brian b | 16 April 2020


Thank you Binoy - a well-informed, thoughtful, considered and very worrying article. Thank you for the work you're doing on vital issues like these. I read all your articles with great respect.
Louise Segrave | 16 April 2020


A shallow victory for the press indeed. Perhaps if the Smethurst team had nominated the monetary value and proved ownership of the documents which were seized court and legal costs could be awarded...but if you don't actually own something its not yours, certainly not to be returned by court order. The fourth estate needs to examine legal protections for property which is misappropriated or illegally obtained. The Smethurst search warrant reporting is repeatedly accompanied with the seemingly indignifying search of the underwear drawer... please bear in mind female ABC journos (Jane Hutcheon under guidance of another) have admitted to hiding recordings in their underwear to avoid seizure by authorities...and we'd be disappointed if the Feds weren't thorough. The Right to Know campaign needs to observe the law and may be less ambitious if it required illegally obtained "hot" content didn't result in a fat paycheck.
ray | 16 April 2020


The public’s right to know, and press freedom, need improvement. But who really cares? Remember Labor’s News Media Bill 2013? It sought to appoint a Public Media Interest Advocate with extraordinary powers to determine what is, or what is not, in the public interest—and who was accountable only to the Minister who appointed him and who determined his salary. Or former Greens leader, Richard Di Natale, telling supporters he would seek to ban conservative commentators, “people like Andrew Bolt and Alan Jones and Chris Kenny.” Remember too that 90% of US media pushed the Russia/Trump collusion hoax with endless anti-Trump leaks. Recently declassified information shows the FBI knowingly used Russian disinformation to launch the investigation. So the most serious constitutional crisis in US history—an attempt to overthrow a duly elected President—is completely missed by a partisan political media. The 1949 communist show trial of Hungary’s Cardinal Joszef Mindszenty, was covered by Australian journalist, and Stalinist, Wilfred Burchett. Burchett used a distinct genre of vilification to ridicule and humiliate the Cardinal. In some Australian media, there were remarkable similarities between the character assassination of Cardinal Mindszenty and Cardinal George Pell. What’s really needed in journalism are some ethics.
Ross Howard | 17 April 2020


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