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Volume 32, Issue 4 2020


Volume 32, Issue 4 2020


Spencer Zifcak is Allan Myers Professor of Law and former President of Liberty Victoria

In 2018, the Australian Federal Police (AFP) raided the offices of senior journalists from News Corporation and the ABC. These raids caused great consternation amongst media organisations, journalists and human rights lawyers in Australia. The events have prompted a re-appraisal of the state of media freedom in Australia.

The AFP has defended its actions, journalists have been up in arms, media organisations have complained of intimidation, and the government has denied any responsibility. In their own way, each has responded reasonably. The basic problem does not lie primarily with their actions. Instead, it is the law that is problematic. The greater the incursion of the law is upon the rights and entitlements of journalists, the weaker the underpinnings of democracy become.

Four illustrations of journalistic freedoms at stake

So, here are four illustrations of the journalistic freedoms at stake. The first concerns the terms of the Commonwealth Criminal Code 1995, introduced by amendments in 2017. One part of the Code deals with the secrecy of governmental information. This part creates a series of crimes related to the improper disclosure of ‘inherently harmful information’. The most important section of the Code states that it is a crime for a Commonwealth Government official to disclose information classified as secret or top secret. That is a sensible provision.

It is the second crime that worries the media industry, not least because of the severity of its penalty. Here, a person, other than a Commonwealth official, commits an offence if (s)he comes into possession of confidential information dealt with by a Commonwealth official, and then communicates that information to an individual outside the government. The kind of information aimed at, is information that has been classified as secret, or which might damage national security if it is disclosed.

In other words, if classified information has been communicated to a journalist by a Commonwealth official, and the journalist or their media organisation elects to publish an article incorporating that information, the journalist courts a term of imprisonment of five years. The key problem here is that the classification of governmental information as secret or top secret is essentially arbitrary. So, the more broadly that secrecy is defined, the wider the scope of the crime of disclosure becomes.

The Code does contain a journalistic defence however. It is a defence to prosecution if in disclosing the information, a journalist is engaged in reporting the news or current affairs, and the journalist reasonably believes that the disclosure is in the public interest.

The defence is fragile however. That is because the meaning of the terms ‘reasonable belief’, and ‘public interest’ is inherently vague. And it is because the onus of proof as to the existence of a reasonable belief, and the actuality of a demonstrable public interest, lies upon the journalist and not the other way around. Any sensible journalist will think twice about risking court and prison upon such an uncertain legal foundation.

Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018

The second example concerning journalistic freedoms relates to the terms of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. This legislation provides a new array of ways in which intelligence and law enforcement agencies may seek to uncover the identity of a source for a journalist’s story. It is a pivotal ethical principle underpinning the profession of journalism that journalists must not be required to, and will not, disclose their sources.

However, under the new law, an intelligence or law enforcement agency can issue a notice to a ‘designated communication provider’ requiring that provider assist with a criminal investigation. Every major media organisation in the country may fall within the definition of a communication provider as may any individual journalist.

The definition of the assistance that could be required is very broad. It may include, for example, the removal of the electronic protection of data by such means as encryption, the provision of technical information governing access to data, and the facilitation of access to electronic devices.

These and similar powers are catalysed by the issue of ‘computer access warrants’. Such warrants permit intelligence and law enforcement officers to intercept any communication passing over a telecommunications system. To enable interception, the warrants may authorise the examination of any individual’s or organisation’s computer to access relevant data.

Further, and remarkably, in order to access and use relevant data, the authorities may add, copy, alter or delete computerised data. If necessary, agency officials may remove a computer from premises for the purpose of an examining it.

It was a warrant of precisely this kind that was issued to the ABC in the recent search and seizure raid upon it. The danger inherent in such powers for the confidentiality of journalistic sources is self-evident. From this point onward journalists cannot with any confidence assure their sources that their identity will not be disclosed.

The metadata law

The third example relates to the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, better known as the ‘metadata’ law. Pursuant to this law, internet service providers are required to keep telecommunications data of various kinds for a period of two years. The data to be kept includes the name and address of service subscribers; contact information; payment information; identifiers of the account from which, and to which, a communication has been sent; the date and time of every communication; and the types of communication and service utilised. Access to the content of communications, however, is excluded.

A dizzying array of law enforcement agencies may request the information to which service providers must provide access. Fifteen classes of agency are so authorized. These include the Australian Federal Police, State Police Forces, Australian Securities and Investment Commission, the Australian Competition and Consumer Commission; and all State Anti-Corruption Commissions. With one significant exception, a judicial warrant is not required before a demand for metadata relating to a person is made. In the two years in which this law has been in force, approximately 350,000 such requests for metadata have been made.

The exception is for journalists. When considering whether to approve the issue of a journalist information warrant, the Attorney-General must be satisfied that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of a journalistic source. In the current national security focused environment, the Attorney-General’s discretion in this respect offers next to no protection at all.

The problems with metadata legislation of this kind are self-evident. While the content of communications may not be accessed, metadata itself can provide a detailed picture of a person’s private life. Law enforcement agencies can easily paint a person’s private portrait from their phone calls, email, online chat, credit card purchases, web searches, identified associates, and GPS co-ordinates. The pattern of a journalist’s communications and movements may very readily serve to identify their sources.

The cardinal defect in the legislation is the absence of a legislative requirement for enforcement agencies to obtain a journalistic access warrant, or indeed any warrant, the justification for which is independently and impartially assessed by a Justice of the Supreme Court. In the ABC raid, the warrant was issued by a junior court administrator. This is deeply unsatisfactory.

The Australian spy story

Finally, I come to the most serious and troubling of the freedom of speech case in Australia. It is a real spy story.

In 2019, the Attorney-General announced that he had approved the prosecution of Witness K, a former Australian Security Intelligence Service (ASIS) officer and his lawyer, Bernard Collaery, a former Attorney- General of the ACT. They are being prosecuted for a breach of s.39 of the Intelligence Services Act 2001 (Cth).

The prosecution arises out of the involvement of Witness K and Bernard Collaery in a legal dispute between the governments of Australia and Timor-Leste. This concerned their respective entitlements to revenues from oil and gas fields located north of Australia in the Timor Sea.

From 2002-2004, the two countries were locked in intense and heated negotiations as to the proper allocation of the oil and gas revenues. That allocation, in turn, depended critically on where the maritime boundary between Timor and Australia should be drawn. As to this, the two governments’ positions were categorically opposed.

The Timorese Government proposed that the boundary dispute should go to the International Court of Justice for independent determination. The Australian Government responded by withdrawing from the Court’s maritime jurisdiction. This deprived Timor-Leste of the opportunity to pursue its legal case.

Nevertheless, bilateral negotiations proceeded. A new round of talks was held in Dili, the capital city of Timor, in April 2004. At the same time, however, Australia’s Foreign Minister instructed ASIS to undertake secret surveillance activity in Timor-Leste. The purpose of this activity was to find out the Timorese Government’s legal arguments in relation to the location of the maritime boundary.

It is now known that ASIS officers posed as aid workers who were employed to assist with the construction of new government offices in Dili. This was the building in which the Timorese Prime Minister and Cabinet held their meetings.

During the course of construction, it seems that ASIS agents placed surveillance devices in meeting rooms which allowed ASIS to listen in to Timor-Leste’s Cabinet discussions. These included Cabinet’s deliberations as to Timor’s negotiating position on the maritime boundary and the future carve up of the revenues. In this way, the Australian Government obtained critical information about Timor’s legal position, providing it with a very unfair advantage in the oil and gas negotiations.

The negotiations continued and, in May 2005, a joint agreement was reached on a formula for revenue sharing from the Timor Sea. Timor got more money but caved in to Australia’s demand that the maritime boundary issue should be indefinitely deferred. Timor’s position in those negotiations had been weak, given the parlous state of its economy. So, the Timorese government still believed that the agreement reached was very unfair.

A sense of injustice prompted Witness K, who had been part of the ASIS team engaged in bugging the Timor government’s offices, to complain to the Inspector- General of Intelligence in Australia about the legality of the spying operation. He believed, rightly, that it had been unlawful. The Inspector-General agreed that Witness K should be permitted to give evidence in any future legal proceedings internationally in relation to the maritime boundary dispute. After that, information as to the Cabinet surveillance operation made its way progressively into the Australian and Timorese media.

In 2013, the Timorese Government briefed Bernard Collaery to represent its interests in relation to the Timor Sea dispute. Witness K briefed Collaery in order to protect himself from any repercussions that may arise if he disclosed information about the bugging operation in litigation before international courts.

The story gets uglier from there. In 2013, the Timorese government took its concern about Australian surveillance, and the commercial disadvantage it had suffered from it, to the Permanent Court of Arbitration in The Hague. It declared that it wished to withdraw from existing treaty commitments, citing the surveillance activity as startling evidence of Australia’s bad faith in the conduct of the preceding Timor Sea negotiations.

The Timorese Government decided to call Witness K to strengthen its argument at the Permanent Court. The Australian Government acted quickly. It cancelled his passport to prevent him from leaving the country to provide his evidence. His passport has still not been returned.

Next, the Government raided both Witness K’s and Collaery’s homes and offices. Australian Security Intelligence (ASIO) agents confiscated troves of documents from Colleary. These documents included an early draft of Witness K’s affidavit on the surveillance of Timorese Cabinet deliberations. Further, they included Collaery’s legal advice as to Timor’s entitlements to areas of the Timor Sea.

Late last year, the Commonwealth Attorney-General approved the criminal prosecution of Witness K and Bernard Collaery, his lawyer, for breaches of the Intelligence Services Act. The essential charge is that they conspired to disclose classified information with respect to the activities of ASIS.

Reflecting on the prosecution in the spy case

Before moving to a consideration of that prosecution, it is worth reflecting for a moment on the illegal activities in which the Australian Government may have engaged. It appears likely that ASIS undertook an act of criminal trespass in Timor-Leste by planting surveillance devices to monitor the Timor Cabinet’s deliberations. As in every other democratic country, Timor’s Cabinet deliberations are by law secret.

States and their property are immune from the domestic jurisdiction of another country. So, Australia broke international law by raiding Witness K’s and Collaery’s offices and confiscating documents that were, clearly, documents the property of the Timorese Government.

Furthermore, there is nothing in Australian law which would permit a government to engage in activities that are contrary to Australian law or to the law of another sovereign country. As to this, the former Chief Justice of the High Court of Australia, Sir Anthony Mason, has said that:

For the future, the point needs to be made loudly and clearly that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily flow from breaches of the law.

Returning finally to the forthcoming prosecution of Collaery and Witness K, they are charged with having infringed the provisions of s.39 of the Intelligence Services Act 2001.

The relevant provision states that a person commits an offence ‘if he or she communicates any information…that relates to the performance by ASIS of its functions..

There is a certain Alice in Wonderland quality about all this. Everything has been turned upside down. The two people who acted in the national interest by disclosing unlawful activity undertaken by Australia’s overseas intelligence service are the defendants in the criminal case. The Government, which initiated the unlawful, covert operation, has become the prosecutor. Something has gone very wrong.

There are two very important legal matters that arise from this story. First, should the prosecution of Witness K and Bernard Colleary be successful, it will have a most chilling effect on freedom of speech in Australia. Journalists, lawyers and public servants who are brave enough to expose governmental corruption or illegality will have to think twice about doing so. No one wants to go on trial. And if convicted, Witness K and Bernard Collaery are facing a sentence of two years in jail.

Secondly, the Australian Government has made an application to the Supreme Court of the ACT for parts of the trial to be held in secret on the grounds of protecting national security. A secret trial would be a grave breach of the principle of open justice and the right to a fair trial established in international human rights law.

So, what is likely to happen? On balance, I think that Witness K and Bernard Collaery may be acquitted of the offence with which they have been charged. This is because they should be protected by the Australian Constitution’s implied freedom of political communication. But it is a dangerously close run thing.

Student activities

1. Why do you think, the Australian Federal Police (AFP) were involved in the raid on senior journalists, rather than state police?

2. List the four groups that have commented on the actions of the AFP.

3. Why do you think the second crime, relating to journalistic freedoms, is most concerning for the media?

4. How can the sanctity of journalists’ sources be exposed and the journalist involved found to have breached rules under the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018?

5. What is a computer access warrant?

6. Explain why the provision under the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 can lead to a journalist facing a prison sentence.

7. Why do you think it is a problem that a variety of agencies can access metadata?

8. What is the role of the Permanent Court of Arbitration in The Hague?

9. Using your own words, give an explanation of the freedom of speech ‘spy case’ as mentioned in this article.

10. What is the outcome of that case to date?

11. Do you think that the Australian Government breached international law? Explain.

12. What do you think could be seen as wrong with the Australian Government being the prosecutor in this ‘spy’ case?

13. How could this case affect the freedom of journalists to report government corruption in the future?

14. The Australian Government has made an application that parts of the trial should be held ‘in camera’. How could that be a breach of the principle of open justice?

15. List the four journalistic freedoms that are at stake, referred to in this article. Write an essay or hold a discussion about how these restrictions on journalistic freedoms can impact on our Australian democracy.

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