Diminishing the rights of whistleblowers, raids on journalists and amendments to the Privacy Act, will all impact the ability of the media to speak truth to power, according to a leading media lawyer.
Gina McWilliams, senior legal counsel at Nationwide News which publishes The Daily Telegraph and The Australian, discussed reforms and issues of privacy legislation with journalism students at University of Technology Sydney, and warned recent court cases had done little to protect journalists’ rights.
She added the current court cases unfolding against whistleblowers David McBride and Richard Boyle were particularly worrying.
“[There are] two Public Interest Disclosures Act (2013) cases, both which have failed to protect the whistleblower basis of that Act,” McWilliams said.
“The Commonwealth Public Interest Disclosures Act, as well as their state equivalents, are these horrible, horrible pieces of legislation that set out the horribly complicated regime that involves making an internal complaint.”
She said while employees must flag any concerns within their organisation first before they could go to outside bodies, presented obvious issues, it still had not been enough to protect whistleblowers.
Boyle, 46, is charged with 24 offences relating to his exposure of the Australian Tax Office’s allegedly unethical debt recovery practices. Despite having raised the issue internally and with the Tax Ombudsman, before going public, the former debt collection officer has been prosecuted on the basis he illegally made copies of ATO information.
The case, which is expected to be heard later this year in South Australia, would be the first major test of protections available under the Public Interest Disclosure Act (PID).
Removal of these journalist exemptions is going to make things really difficult.
Former Army lawyer McBride, meanwhile, faces trial in November for leaking information about Australian war crimes in Afghanistan to ABC journalists for the Afghan Files story.
McWilliams, who is well known for fighting for journalist rights and her work in amending Tasmania’s Evidence Act, also raised concerns around changes to the NSW Privacy Act that are currently being proposed.
“Removal of these journalist exemptions [in the Privacy Act] is going to make things really difficult,” she said.
Among the proposed reforms, journalists would be required to erase information they have gathered on a story if it is no longer needed or relevant.
“It is difficult for journalists to go ‘I’m never going to need this material again’,” McWilliams said, bringing up the example of the Teacher’s Pet podcast.
The podcast was the catalyst in the police investigation and conviction last year of former-teacher Chris Dawson, who murdered his wife decades before.
McWilliam’s warned the proposed reforms may not allow for journalism in a similar vein.
She also spoke about the AFP raids on multiple journalists and media outlets in 2019, particularly regarding the logistics of defending her colleague Annika Smethurst, who was The Sunday Telegraph‘s political editor.
“My first reaction when getting that call was – sorry what!? Then the adrenaline and panic set in,” the Sydney-based lawyer said about having to organise legal cover in Canberra.
“We have these external legal teams on the ready to get somewhere where we can’t.”
Nationwide had lawyers taking shifts staying with Smethurst during the extensive seven-hour raid and in following days after she was targeted for an article published a year earlier about the Australian Signals Directorate’s secret plans for sweeping changes to law that would allow them to extend their ability to spy on members of the Australian public.
McWilliams also pointed out how intrusive the raids were.
“I don’t think I read an article for the next six months that did not make the point that included her underwear drawer [was searched],” she said.
“If you ever get raided, keep that in mind.”
Even though the warrant to search Smethurst’s house wasn’t valid, and was later quashed by the High Court, the AFP were still allowed to keep all the information they had copied from her personal devices (including her phone and laptop).
“Don’t ask me to explain why they got to keep the information; it even went over my head,” McWilliams said, while also noting the High Court’s judgment did not provide any protections for journalists to avoid these types of incidents and that there was no political support for the attack on the press.
“At the end of the day, it probably didn’t make a difference,” she said.
Main image Nationwide News senior legal counsel Gina McWilliams with lecturer Martin Newman. Photo: Central News.