RISK AND UNCERTAINTY IN PUBLIC INTEREST JOURNALISM: THE IMPACT OF ESPIONAGE LAW ON PRESS FREEDOM.

• Date: 01 April 2021
• Author: Ananian-Welsh, Rebecca

CONTENTS I Introduction II Press Freedom A Principles and Protections B Leaks and Raids III The 2018 Espionage Offences A Underlying Espionage Offences 1 Key Terms 2 The Core Espionage Offence 3 The Remaining Underlying Offences B Espionage-Related Offences C Aggravated Espionage Offences D Defences to Espionage IV How Have Journalists Been Impacted by the 2018 Espionage Laws? A Contributing to a Broader Chilling Effect B Journalism in a High-Risk Environment C Uncertainty D Budget Implications: Training and Legal Fees E Summary V Do the Offence Provisions Threaten Press Freedom? A The Core Espionage Offence 1 Publication as Communication to a Foreign Principal 2 Media Organisations as Foreign Principals 3 Intention and Recklessness as to National Security Consequences 4 Summary: Scope and Uncertainty B Communication Espionage C Classified Information Espionage D Espionage on Behalf of a Foreign Principal E Trade Secrets Espionage F Espionage-Related Offences G Aggravations H Defences I Summary VI Conclusions and Recommendations I INTRODUCTION

On 4 September 2019, outgoing Director General of the Australian Security Intelligence Organisation ('ASIO'), Duncan Lewis, described espionage and foreign interference as 'by far and away the most serious issue going forward' for Australia's national security. (1) Espionage, as defined by ASIO, concerns 'the theft of Australian information by someone either acting on behalf of a foreign power, or intending to provide information to a foreign power which is seeking advantage'. (2) This pre-eminent threat, Lewis said, outstripped even the threat of terrorism. (3) Only a year earlier, the federal government had overhauled Commonwealth espionage and foreign interference laws. This included the introduction of a complex suite of new espionage offences, justified on the basis that law enforcement and intelligence agencies 'lacked the legislative tools they needed to act' in order to protect Australia's national security. (4) However, the reforms attracted criticism as being over-broad, highly complex, and posing a risk to fundamental freedoms and democratic principles. (5)

Mere hours before Lewis made these comments, Australian Federal Police ('AFP') officers had raided the Canberra home of former intelligence officer Cameron Gill on suspicion he had leaked classified documents to News Corp journalist Annika Smethurst. (6) Those documents included a top-secret departmental memo concerning a proposal to grant unprecedented domestic surveillance powers to the Australian Signals Directorate ('ASD'). (7) Based on the leaked memo, Smethurst and The Daily Telegraph published a series of articles and, on 4 June 2019, the AFP had raided the journalist's home to search for evidence that would identify Smethurst's confidential source. (8) While Gill's alleged actions were not traditional espionage, it arguably had the same effect: the sharing of classified information with a journalist resulted in its dissemination to the wider public, which includes foreign powers who might use that information to their advantage.

Within 24 hours of the Smethurst raid, the AFP executed a raid on the Sydney headquarters of the Australian Broadcasting Corporation ('ABC'), also seeking evidence relating to leaked classified documents and the publications that followed. Together, these raids drew global attention to the fragility of press freedom in Australia and, specifically, the impact of law enforcement and national security frameworks on Australian journalism. (9) The government initially expressed its support of the raids and left open the possibility of charges being laid against the journalists involved. (10) In the wake of Smethurst's successful High Court challenge to the raid, the AFP confirmed that it would not be laying charges against her. However, the AFP maintained that it would continue to pursue cases like Smethurst's because they involve a serious breach of national security. (11) More broadly, criticism of the raids prompted a series of ministerial directions to the AFP, (12) two parliamentary inquiries on the impact of law enforcement powers on press freedom, (13) a campaign led by an unlikely coalition of Australian media organisations, (14) and legal challenges by both Smethurst and the ABC. (15)

Both press freedom and counter-espionage are critical to the health of Australian democracy. It is therefore imperative to design effective espionage laws that do not unnecessarily undermine press freedom. This article draws together legal analysis and qualitative interviews to examine the impact of the 2018 espionage laws on press freedom and provide recommendations for law reform to protect national security without unduly encroaching on press freedom. It reveals that current espionage offences pose a significant risk of criminalising legitimate journalism and that this, in combination with their staggering complexity and uncertain scope, is contributing to the 'chilling' of public interest journalism in Australia.

We begin, in Part II, by introducing the notion of press freedom and detailing the AFP raids and other examples of investigative reporting based on leaked material, which demonstrate the potential for public interest journalism and national security to intersect. Then, in Part III, we turn to the 2018 espionage offences. Part IV examines the real-world impact of the espionage laws on Australian journalism, drawing on semi-structured interviews with leading newsroom professionals from across Australian media organisations. The results of this empirical research frame the legal analysis, in Part V, which engages statutory interpretation to assess whether, and how, the provisions threaten legitimate journalism. This two-pronged, legal and empirical, approach reveals that journalists' concerns regarding the espionage laws are justified and, if anything, underestimate the threat to press freedom posed by the espionage offences. We conclude with recommendations for reform to protect national security without unduly undermining press freedom.

II PRESS FREEDOM

A Principles and Protections

The importance of a free and independent press in a liberal democracy cannot be overstated. As the United Nations Human Rights Committee recognised:

A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other [International Covenant on Civil and Political Rights ('ICCPR')] rights. It constitutes one of the cornerstones of a democratic society. (16) Thus, a free and independent press is fundamental to the rule of law and plays a vital 'fourth estate' role in supporting government transparency and democratic accountability. (17)

Press freedom is, therefore, a broad and substantive notion. It encompasses the protection of journalists and media organisations in the conduct of their work, particularly in their capacity to facilitate government accountability, as well as the protection of journalistic sources and the public's right to know.

Press freedom is closely related to the human right to free expression. This right is protected under art 19 of the ICCPR and in human rights instruments the world over, including in the United Kingdom, (18) Canada, (19) New Zealand (20) and in Australia's three human rights Acts: the Human Rights Act 2004 (ACT), (21) the Charter of Human Rights and Responsibilities Act 2006 (Vic) (22) and the Human Rights Act 2019 (Qld). (23) The United States ('US') Bill of Rights protects both freedom of speech and freedom of the press. (24)

However, neither freedom of expression nor a free press is granted express protection under the Australian Constitution or federal human rights legislation. The closest protection arises from the implied freedom of political communication derived from ss 7, 24, 64 and 128 of the Constitution, which limits the scope of legislative power to effect unjustified or disproportionate burdens on political communication. (25) Notably, the ABC invoked the implied freedom in its challenge to the AFP's June 2019 raid. Specifically, it claimed that the search warrant provisions in s 3E of the Crimes Act 1914 (Cth) ('Crimes Act') effected a disproportionate burden on political communication. This argument, and the ABC's challenge to the raid, were unsuccessful. (26)

As the jurisprudence reflects, press freedom and free expression are of vital importance, but are by no means absolute. Under the Constitution, all that is needed to undermine political communication is a legitimate reason and proportionate restriction. Under international law, the right to free expression is broader and more robust. Nonetheless, art 19(3) of the ICCPR relevantly provides that freedom of expression may be subject to restrictions under law as necessary 'for the protection of national security or of public order (ordre public), or of public health or morals'. This does not convey a broad basis of exemption, and the United Nations Human Rights Committee observed that it would violate art 19 to invoke national security laws 'to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists ... for having disseminated such information'. (27)

B Leaks and Raids

An understanding of press freedom and its potential intersection with national security is assisted by considering the AFP's June 2019 raids on Smethurst and the ABC. Over the course of seven hours on 4 June, AFP officers completed a thorough search of Smethurst's home, seeking information that might reveal the identity of one of her sources. The raids were prompted by stories published by The Daily Telegraph in April 2018 which discussed (and contained images of) a top-secret departmental memo. The memo concerned a proposal to expand the powers of the ASD beyond its existing mandate: namely, the collection of intelligence on foreign nationals...