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Legal profession calls for journalistic protection amid AFP brief
A major legal body has called for law reforms around journalistic freedom amid reports the Australian Federal Police have referred a brief of evidence to prosecutors relating to a major media investigation into alleged war crimes by Australian troops.
Naomi Neilson
The Australian Federal Police (AFP) have forwarded documents to the Commonwealth Director of Public Prosecutions relating to the ABC’s investigation of alleged war crimes by Australian troops in Afghanistan. The case began in July 2017 and culminated in a raid on the public broadcaster’s Sydney headquarters in June 2019.
The referral is a procedural step that follows a police investigation and prosecutors will now decide whether to push ahead with charges. Attorney-General Christian Porter is “seriously disinclined” to approve prosecution of journalists but gave no guarantees.
In light of this, the Law Council of Australia (LCA) has reiterated the importance of the freedom of press and said all public interest reporting is the cornerstone of democracy. LCA president Pauline Wright noted the prosecution of journalists engaging in this kind of reporting should not be left to prosecutorial and ministerial discretion.
“Accurate journalism in the public interest should never be a criminal offence,” said Ms Wright. “All Australians benefit from a free and fearless media that scrutinises all power and holds it to account. It is clear we need legislative reform to ensure this.”
The LCA is seeking law reform at “every step of the process”, including requesting that judges of a superior court should be tasked with search warrants. If granted, the LCA has asked that judges apply a statutory public interest test to each warrant, on top of requesting that there be a monitor role to contest search warrants if needed.
“We need a proper review of Australia’s laws to ensure journalists do not face the risk of prosecution for doing their job,” said Ms Wright, adding that disclosure of classified information should only be criminalised if it causes real harm, and not just humiliation.
Last year, the AFR raided the home of News Corp journalist Annika Smethurst and the federal government launched two inquiries into whether the laws adequately protect whistleblowers and journalists. The Human Rights Law Centre is disappointed that 12 months on, neither inquiry has reported any findings into the matter.
“The government might not like the scrutiny or having wrongdoing exposed but we are a democracy and Australians have a right to know what our government is doing in our name. Journalists must be able to do their jobs without fear of being put in prison,” said the Human Rights Law Centre senior lawyer Alice Drury.
“The issue of criminalising whistleblowing and unacceptable surveillance of journalists is damaging our democracy every single day and must be addressed.”
Australian Centre for International Justice Rawan principal lawyer and director Rawan Arraf has called on Mr Porter to refuse to give consent to any prosecution against Mr Oakes and for the government to release the findings of the inquiry.
"Investigative efforts should be spent on investigating the allegations of the serious war crimes, not on journalists who report in the public interest," said Ms Arraf. "It is remarkable that no one has yet been referred to the CDPP for charges of war crimes."
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
