On World Press Freedom Day, Wendy John asks once-jailed journalist Peter Greste, if anything can be done to thaw the chilling effect of Australia’s tougher national security laws.
Game of Thrones fans know “Winter is Coming” as the motto of the noble House Stark. It warns of dark times ahead. Not unlike the warning being sounded this World Press Freedom Day.
Journalist Peter Greste has seen his own dark times. The former Al Jazeera reporter spent 400 days in an Egyptian jail between 2013 and 2015, charged with broadcasting “live news harming domestic security.”
Now, he jokes that “the Egyptian judicial system and prison had its own Game of Thrones, complete with villains, goblins and the occasional fire breathing dragon.”
He says of his time in jail: “The thing I wrestled with was that I couldn’t see that we had done anything wrong. The work we were doing was pretty pedestrian stuff – Journalism 101.”
Upon returning to Australia, he began researching and advocating for incarcerated journalists, globally.
“All of a sudden the pennies started to drop and I started to see a consistent pattern. I saw how national security legislation was used to come after the press.”
Now a university academic, Professor Greste’s advocacy for press freedom has been increasingly challenged by Australia’s national security legislation. On average, new restrictions have been added once every 13 weeks since mid-2014. By 2019 the tally was 82, with another five bills before parliament.
Australia’s covert surveillance schemes and national security legislation outweigh all other Western democracies.
“The chilling effect on investigative journalism is real,” Prof. Greste said. “When I talk to people in the media, the story is the same; they are having more and more trouble accessing key sources, especially in government – local, state and federal. And what’s coming out is a tremendous anxiety, especially around data retention.”
Australia’s metadata retention scheme, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, is managed by Home Affairs Minister Peter Dutton. It requires telcos to retain customers’ metadata for two years and, upon request without a warrant, provide it to 22 government agencies.
“It was sold to us as a piece of national security legislation to increase the capacity to find terrorists,” Prof. Greste said. “A 2019 Telecommunications Alliance report showed there were over 350,000 requests for metadata in 12 months. Without knowing the detail you can’t say for sure, but I’d bet everything I own that they weren’t all for national security.”
“The net effect of what the courts did was to effectively say ‘we’ve no way of protecting you. You guys (journalists and their sources) are screwed’.”
Adding extra chills to a whistle blower’s resolve were a raft of new national security laws in 2018, providing hefty criminal convictions for sources and journalists. To circumvent the surveillance, journalists were encouraged to encrypt their communication with sources. That is until the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 also gave the government power to co-opt telcos to install spyware and encryption bypassing technologies.
These are the legislative changes that currently expose NewsCorp journalist Annika Smethurst and her source, to possible criminal charges. Last year, Australian Federal Police raided Ms Smethurst’s home to extract metadata from her devices. It was over her story on the Australian Signals Directorate’s plans to extend international spying powers to domestic surveillance. Last month the High Court ruled that the raid warrant was invalid, but did not require police to return the metadata, which could reveal her source’s identity.
“The net effect of what the courts did was to effectively say ‘we’ve no way of protecting you. You guys (journalists and their sources) are screwed’, Prof. Greste said, adding: “I don’t think it’s a grand conspiracy, an attack on freedom of the press. But it’s definitely having that effect.”
As World Press Freedom Day is celebrated across the globe, Australia has dropped five places on the 2020 World Press Freedom Index – to number 26. Although this categorises Australia as “fairly good”, Prof. Greste says it’s hard to measure the chilling effect on journalism “by the stories not being told.”
Richard Murray has co-written a paper with Prof. Greste, advocating for a Media Freedom Act that would set out in principal, and in law, “the vital watchdog role” that the media plays in our democracy. Mr Murray’s research indicates that it’s not only whistle-blowers that are deterred by Australia’s laws.
“If you look at the way legal advice works in media organisations, they are definitely becoming more risk averse too. Every time something is litigated (to defend a piece of journalism) it’s a big hole in the budget,” he said.
Public reaction to the raids on Annika Smethurst’s home and on the ABC’s Sydney HQ over the story, “The Afghan Files”, has led to two parliamentary inquiries into press freedom. Both are yet to report their findings and recommendations.
Many submissions however, called for numerous amendments to national security, metadata and surveillance laws, to include robust exclusions for journalists and whistle-blowers.
Yet legal reform of national security and data surveillance legislation will not necessarily protect journalists before a judge. The warrant used to raid the ABC last year for instance, was obtained using the Defence Act 1903 and Criminal Code Act 1995.
The only way you’re going to stop these creative uses of law” Prof. Greste said, “is a Media Freedom Act.”
Such an Act would “filter down through the loopholes of an entire legal code” according to a 2019 paper by legal academic, Rebecca Ananian-Welsh.
Such an Act is in the process of being drafted by The Greens party. A spokesperson advised that they intend to “have it ready for when parliament returns permanently later this year”.
According to Richard Murray, “One of the biggest barriers to a Media Freedom Act is convincing people we need it.
While Peter Greste says that the experience of being incarcerated “focuses the mind” on matters of media freedom, it’s not an experience he recommends.
— Wendy John @wendyjohn8
*You can hear more from Peter Greste at a virtual event to celebrate World Press Freedom Day The War on Journalism: press freedom in Australia under attack, on May 6.