{"id":2259,"date":"2020-02-19T10:20:26","date_gmt":"2020-02-19T00:20:26","guid":{"rendered":"https:\/\/testblogs.griffith.edu.au\/gci-insights\/?p=2259"},"modified":"2022-07-15T13:31:57","modified_gmt":"2022-07-15T03:31:57","slug":"federal-court-decision-confirms-need-for-urgent-law-reform-to-protect-journalists","status":"publish","type":"post","link":"https:\/\/testblogs.griffith.edu.au\/gci-insights\/2020\/02\/19\/federal-court-decision-confirms-need-for-urgent-law-reform-to-protect-journalists\/","title":{"rendered":"Federal court decision confirms need for urgent law reform to protect journalists"},"content":{"rendered":"\n

By Keiran Hardy<\/a><\/p>\n\n\n\n

On Monday, the Federal Court of Australia<\/a> upheld as valid the search warrant which allowed the AFP to raid the ABC\u2019s Sydney offices<\/a> last year. Those raids followed the publication of stories about \u2018The Afghan Files<\/a>\u2019, a collection of leaked defence force documents which suggested that Australian soldiers may have committed war crimes in Afghanistan.<\/p>\n\n\n\n

Justice\nWendy Abraham ruled against the ABC, dismissing the application and ordering\nthe national broadcaster to pay the other parties\u2019 legal costs. <\/p>\n\n\n\n

The\nABC may still appeal the decision, but the judgment reaches firm conclusions\nthat the AFP did not misuse its powers and that there are no explicit\nprotections for journalists in the exercise of police search warrants.<\/p>\n\n\n\n

The decision has been criticised as yet another blow to press freedom<\/a> in Australia. There is some truth to this, although the courts can only operate within the legal framework set for them by Parliaments. <\/p>\n\n\n\n

Adequate\nlegal protections for journalists acting in the public interest do not exist.\nUntil the government introduces explicit protections for journalists into Parliament,\ncourts will continue to make similar decisions.<\/p>\n\n\n\n

Why\ndid the court uphold the search warrant?<\/strong><\/p>\n\n\n\n

The 117-page judgment<\/a> is highly technical and focuses to a large extent on questions of statutory interpretation. The main legal issues in the case could not be resolved by reference to journalists\u2019 rights or freedom of speech.<\/p>\n\n\n\n

There\nare two main reasons why the court upheld the search warrant.<\/p>\n\n\n\n

  1. The\nwarrant was not vague or unreasonable<\/em><\/li><\/ol>\n\n\n\n

    The\nABC\u2019s main ground for challenging the search warrant was to claim it was not\nsufficiently precise. The warrant was certainly very broad: it listed 19\ndifferent types of documents that police might find, including emails, minutes,\nreports, diaries and briefing documents. These could relate to 39 specified topics,\nincluding the ABC, the 7.30 report, the Australian Defence Force and the\nstories published online.<\/p>\n\n\n\n

    However, the warrant also specified offences under the Defence Act 1903<\/a>, the federal Criminal Code<\/a> and the Crimes Act 1914<\/a>. Those offences related to the sharing (not publication) of the leaked documents. The court held that this created sufficient clarity around the types of evidence the police were looking for. The warrant therefore set \u2018meaningful parameters\u2019.<\/p>\n\n\n\n

    The ABC also made a similar argument that the warrant was legally \u2018unreasonable\u2019. However, this is a very difficult test to satisfy, as it requires a degree of illogicality or irrationality. The court recognised that police have a broad discretion to investigate criminal offences, and there was no suggestion they did not act genuinely in seeking the warrant.<\/p>\n\n\n\n

    2. The implied freedom of political communication does not protect journalists from search warrants<\/em><\/p>\n\n\n\n

    The ABC also argued that the power to issue search warrants – found in section 3E<\/a> of the Crimes Act 1914 – cannot be used in a way that breaches the implied freedom of political communication. <\/p>\n\n\n\n

    The\nimplied freedom is not the same as a right to freedom of speech (as can be\nfound, for example, in the US Constitution). Instead, it is a limitation on the\nlawmaking powers of Australian Parliaments. Under this freedom, laws cannot\nrestrict speech about governments unless they do so in a way that is\nproportionate to achieving some legitimate purpose.<\/p>\n\n\n\n

    The\ncourt held that the constitutionality of section 3E could not be determined by\na single case, and it confirmed that the search warrant power was valid. Even\nif that law indirectly affects the implied freedom, the court reasoned, it does\nso in a proportionate way for the legitimate purpose of investigating serious\ncrimes.<\/p>\n\n\n\n

    What\nabout journalists\u2019 rights?<\/strong><\/p>\n\n\n\n

    The\njudgment discusses journalists\u2019 rights to some degree, but these considerations\nhad little influence on the outcome of the case. This is because rights and\nprotections for journalists either don\u2019t exist, don\u2019t have legal force, or\ndon\u2019t apply to the exercise of search warrants.<\/p>\n\n\n\n

    For example, shield laws<\/a> protect journalists from discovery processes or other court orders that would require them to reveal their sources. However, the question of whether police can access journalistic material is legally quite distinct. In any case, it is clear under the terms of the Evidence Act<\/a> that those protections do not apply to police search warrants. <\/p>\n\n\n\n

    There are also guidelines and ethical codes<\/a> that require journalists to protect their sources, but these do not have legal force. Protecting source confidentiality is core to every journalist\u2019s work, but unfortunately this does not mean they have a legal ground to point to in court.<\/p>\n\n\n\n

    What\ncan be done to protect journalists now?<\/strong><\/p>\n\n\n\n

    The\nFederal Court\u2019s decision was disheartening for public interest journalism in\nAustralia. Legally, however, it is not surprising, as it relied largely on\nestablished methods of statutory construction. <\/p>\n\n\n\n

    In considering submissions on the implied freedom, Justice Abraham might have given greater weight to the significant impacts that search warrants can have on journalistic freedom. However, following the High Court\u2019s recent decision in Comcare v Banerji<\/em><\/a>, it is not surprising that she took a relatively conservative approach. <\/p>\n\n\n\n

    It\nwas not open to Justice Abraham – and it will not be open to judges in future\ncases – to create rights for journalists that don\u2019t currently exist. It is\nParliament\u2019s role to enact such rights, and for judges to interpret and apply\nthem. <\/p>\n\n\n\n

    For journalistic freedom to have greater legal force in Australia, the government needs to respond to the Federal Court\u2019s decision by introducing new protections into Parliament. A Media Freedom Act<\/a> should include statutory protections for journalists in the exercise of police search warrants, which exist in the other Five Eyes countries<\/a>. It should also create exemptions to criminal offences where professional news organisations act in the public interest. Until these changes are made, media organisations will face the ongoing possibility of police investigations for public interest reporting.<\/p>\n","protected":false},"excerpt":{"rendered":"

    By Keiran Hardy On Monday, the Federal Court of Australia upheld as valid the search warrant which allowed the AFP to raid the ABC\u2019s Sydney offices last year. Those raids followed the publication of stories about \u2018The Afghan Files\u2019, a collection of leaked defence force documents which suggested that Australian soldiers may have committed warContinue reading “Federal court decision confirms need for urgent law reform to protect journalists”<\/span><\/a><\/p>\n","protected":false},"author":74,"featured_media":2260,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_newsletter_tier_id":0,"footnotes":""},"categories":[73,2],"tags":[],"class_list":["post-2259","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-press-freedom","category-spotlights"],"acf":[],"modified_by":"Keiran Hardy","jetpack_featured_media_url":"https:\/\/testblogs.griffith.edu.au\/gci-insights\/wp-content\/uploads\/sites\/29\/2020\/02\/shutterstock_720683701-1.jpg","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paNLK1-Ar","jetpack-related-posts":[{"id":1942,"url":"https:\/\/testblogs.griffith.edu.au\/gci-insights\/2019\/08\/16\/press-freedom-in-australia-needs-much-more-than-piecemeal-protection\/","url_meta":{"origin":2259,"position":0},"title":"Press freedom in Australia needs much more than piecemeal protection","author":"Keiran Hardy","date":"August 16, 2019","format":false,"excerpt":"By Keiran Hardy This article first appeared on The Interpreter, published by the Lowy Institute. 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