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Press freedom still under threat despite High Court decision
The AFP raid on journalist Annika Smethurst may have been ruled unlawful, but there remain concerns about the ongoing vulnerability of public interest journalism, say legal advocates.
Jerome Doraisamy
On Wednesday, 15 April, the High Court of Australia unanimously held that the warrant relied upon by Australian Federal Police officers to search the residence of News Corp journalist Annika Smethurst was invalid and should be quashed.
As a result, the search of Ms Smethurst’s home and subsequent seizure of data from her mobile phone was unlawful.
As the decision turned upon the validity of the warrant used to conduct the search of Ms Smethurst’s property, the Law Council of Australia noted, there was no requirement for the High Court to engage with broader questions of the adequacy of public interest considerations within Australia’s national security legal framework and whether the power under which the warrant was issued breached the implied freedom of political communication.
Given this, LCA president Pauline Wright said that the advocacy body “remains concerned about the adequacy of public interest protections where warrants authorise investigative action involving journalists and media organisations, whether they are suspected of having committed an offence or whether they are simply third parties who may be in possession of information”.
“The law continues to leave journalists and media organisations exposed to possible police investigation and prosecution,” Ms Wright proclaimed.
“LCA believes that any similar case in the future could be avoided through law reform measures to protect and recognise the importance of public interest journalism and to incorporate greater accountability mechanisms. Protections might include contested hearings, the involvement of a [public interest advocate] to test the warrant process and a requirement that warrants may only be issued by a judge of a superior court of record.
“Australia’s media is critical to holding [the] government and its agencies accountable for their actions and scrutinising the exercise of power. Transparency and accountability lead to better decision-making and a stronger democracy that protects rights and freedoms and upholds the rule of law. This case is a reminder of the ongoing vulnerability of public interest journalism within the current legal framework.”
Human Rights Law Centre senior lawyer Alice Drury expressed similar concerns, noting that laws that criminalise public interest reporting remain in place, leaving journalists and whistleblowers exposed to police investigation and prosecution.
Laws which criminalise reporting remain in force, Ms Drury said, and need urgent reform.
“The [government] might not like scrutiny or having wrongdoing exposed, but we all have a fundamental right to know what our [government] is doing in our name and journalists must be able to do their jobs without fear of being prosecuted or having their homes raided,” she said.
“Attacks on whistleblowers and public interest journalism strike at the heart of our democracy. The raids on Annika Smethurst’s home and on the ABC the very next day show we urgently need law reform to protect whistleblowers and public interest journalism. There must be greater limits on police powers when they are used to shut down [government] scrutiny.”
Ms Drury added that the parliamentary joint committee on intelligence and security was charged with conducting an inquiry into the impact of the exercise of law enforcement and intelligence powers on freedom of the press. That committee was supposed to hand down its report last year, she noted, but instead it has been postponed indefinitely.
“The Morrison [government’s] decision to shut down regular parliamentary processes until August makes the timing of the report – and changes to the law to protect our democracy from future government overreach – even less certain,” HRLC argued.
“It is essential that we have regular parliamentary processes back in place as soon as possible,” Ms Drury posited.
“The issue of criminalising whistleblowing and unacceptable surveillance of journalists is damaging our democracy every single day and must be addressed. As millions of Australians have gone to great effort to make arrangements to work remotely, or make other changes to work safely, our elected politicians should do the same.”
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly and HR Leader. He has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. In June 2024, he also assumed the editorship of HR Leader. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.
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