When former Al Jazeera journalist, Professor Peter Greste, was captured and imprisoned in Egypt – after his reporting of a topic believed to be compromising national security – he began thinking about the seeming tradeoff between the need for national security and democracy.
Populist pressure to clamp down on national security threats, post 9/11, has seen the number of anti-terrorism laws in Australia multiply from the grand total of one (a Northern Territory local law), to 82 – with five bills currently sitting with Parliament.
While few would deny the need to protect citizens from violent extremism and other acts of terrorism, Greste believes the laws – although well-intentioned – are “too loosely drafted” to permit the kind of free-reporting needed for a truly democratic society.
“Media reporting is the cornerstone of democracy. Because we have a constitutionally mandated system of representative democracy, it can’t work without freedom of political communication. Yet there are currently few protections for journalists under the newly drafted legislation,” says Peter.
“As it stands, we are seeing legitimate journalism being criminalised, on the assumption that it may promote terrorist ideology.
“Of course, I’m not saying we need complete, unfettered press freedom, but to altogether quash the right to provide well-informed commentary on areas of public interest threatens the integrity of our society.
“And – after the recent AFP raids on Newcorp journalists – we are already seeing media organisations shying away from or censoring certain topics.”
Peter believes it is possible to achieve the kind of press freedom we need – holding goverments and agencies to account for their behavior – as well as making sure they have the capacity to do their jobs with the required degree of secrecy.
In this regard he proposes a Media Freedom Act.
“Ideally we need a constitutional amendment but, given the difficulties of getting any referendum through, that’s probably unrealistic,” he says.
“A Media Freedom Act could do the same job: compel policy makers to take media freedom into account when drafting national security legislation; but also give the courts a benchmark when they are adjudicating on cases that touch on press freedom.
“Australia is really the only Western democracy that doesn’t have press freedom written into its constitution. It’s only an implied right of political communication, but that’s not strong enough – we need something more explicit,” he says.
“While the Attorney General’s recent directive [that he must personally sign off all prosecutions against journalists] is a positive step in the right direction, alone I don’t believe it offers sufficient protection.
“It’s great because it acknowledges the problem, but it’s not a solution in and of itself. It leaves journalists open to prosecution at the whim of a politician.”
“Furthermore, it places the principle of political control over prosecutions at the heart of the system – when, in fact, it needs to be separate.”
“The idea behind a media freedom act is to create an environment in which press freedom can seep into the loopholes which governments are currently trying to plug with decrees and directives.”
Putting aside his own experiences in Egypt, Peter says the recent AFP raids on the homes of Newcorp journalists is evidence enough for why we need a Media Freedom Act.
“In neither of the two stories that the AFP was targeting was anything exposed that would directly undermine national security,” he says.
“Yes, there is a hypothetical risk of reporters believing they can get away with leaking secret information, but no one has been able to demonstrate a direct threat to national security as a result of those particular stories. Yet, no one has disputed that they were in the public interest.
“Any legal system that criminalises journalists and their sources working on those kinds of stories is a legal system that is flawed and in need of review.”
Though Peter’s experience in Egypt may be extreme, he concludes by saying that the same political imperatives which led to his arrest are the same ones driving Australia’s constitution.
“Politicians are vulnerable if they don’t take steps to clamp down to terrorism, but in doing so they are capturing legitimate journalism in the process.
“I think a lot of legislation has been passed in haste. The fact that we now have two parliamentary inquiries underway at the moment suggests that MPs recognise the problem, but we’re currently a long way from solving the issue.
“Furthermore, I don’t believe we should view national security and democracy as a trade-off at all; rather two pillars supporting the same overarching structure. The Media Freedom Act may just help to even out the scales.”
Professor Peter Greste is UNESCO Chair in Journalism & Communications at the University of Queensland. Hear more from him at Informa’s Law in the Media Conference, due to take place November 8, 2019 in Sydney.