Press freedom inquiry demands government prove real harm of journalists publishing classified information

Government agencies should have to prove ‘real and serious’ harm caused by the release of classified intelligence and information before a criminal investigation can be opened, according to a Senate committee investigating freedom of the press in Australia.

The inquiry, dominated by Labor and Green senators, demands an urgent review of national security legislation, finding that a culture of secrecy has permeated the government.

In 2019, the Australian Federal Police raided the Canberra home of then political journalist Annika Smethurst and the ABC headquarters in Sydney for separate stories based on leaked classified documents.

The incident sparked anger across the Australian media landscape, bringing together often disparate publishers and broadcasters under a campaign banner demanding greater protection for journalists and whistleblowers.

No charges have been brought against Ms Smethurst or the CBA’s Dan Oakes and Sam Clark, despite police investigations that have been going on for years.

In its final report, the inquiry chaired by Greens Senator Sarah Hanson-Young concluded that the legislation in place to protect secret information was far too broad, and “capturing[d] a range of ordinary journalistic activities”.

“There will inevitably be tensions between the government and the media when journalists cover matters of public interest that may embarrass the government,” the committee said.

“For example, disclosures of government actions that undermine national security, reveal abuse of power, or break the law.

One of the committee’s recommendations was to amend the secrecy provisions of the Commonwealth Penal Code to ensure that agencies could prove “real or serious” harm to the government if information were published.

“Without such a requirement, the provisions would be susceptible to overuse, misuse or even abuse,” the committee found.

“In particular, the lack of an express harm requirement can lead to circumstances in which a journalist is prosecuted for very minor or insignificant ‘use’ of classified information.”

Freedom of the press abandoned in favor of national security

The ABC’s 2017 series of stories, known as the “Afghan Files”, uncovered serious allegations of serious misconduct by Australia’s elite special forces during deployments to Afghanistan.

In 2020, the Inspector General of the Australian Defense Force (IGADF) released Brereton’s landmark investigation, finding “credible information” about the “murder” of 39 Afghan civilians and prisoners.

A separate press freedom inquiry has been commissioned by the Federal Government, which has asked Parliament’s powerful Intelligence and Security Committee to investigate whether press freedom has been compromised in the context of the pursuit of enhanced national security protections.

This committee delivered its findings in August last year and called for changes in the way search warrants for journalists were issued.

The second committee called on the government to “urgently” implement the finding.

During the AFP investigation into Ms Smethurst, Mr Oakes and Mr Clark, then Home Secretary Peter Dutton issued a directive to police to consider “the importance of a free and open press” in any investigation.

The Freedom of the Press Inquiry said the order should in fact be enshrined in Commonwealth law.

At the time of the inquests, then-Attorney General Christian Porter also issued a directive – this one to prosecutors, ordering them to seek his approval before prosecuting journalists in court.

The committee found it “highly inappropriate for a government minister to interfere” with the independence of AFP and the Commonwealth Director of Public Prosecutions (CDPP), and said the directive set “a dangerous precedent which should be discontinued immediately”.

The inquiry also called on the CDPP to “urgently reconsider” the prosecution of whistleblower David McBride on “strong public interest grounds” in light of the “shocking findings” of the investigation. IGADF on Afghanistan.

The two government senators on the ongoing inquiry, Liberal David Fawcett and Country Liberal Sam McMahon, released their own dissenting report, saying the findings of the Intelligence and Security Committee should take precedence given its “single mandate” to consider national security issues.

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