Senate Committee Releases Report on Inquiry into Press Freedom

On 19 May 2021, the Environment and Communications References Committee ('the ECRC') published its report regarding its inquiry into press freedom (‘the Report’). The inquiry was referred to the ECRC by the Senate on 23 July 2019.

The Report was a result of two raids conducted by the Australian Federal Police, on a News Corp journalist’s home and the News Corp head office. The events attracted national and international attention in regards to the intersection of press freedom and national security in Australian law, which became the focus of the Report.

Following the Committee’s inquiry, the Report made 17 recommendations.

Statutory Recommendations

The Report includes several recommendations to amend and introduce statutory regimes. The recommendations seek to improve the balance between public interest regarding freedom of press and an open government, against national security interests.

The Report recommended that in its review of Commonwealth secrecy provisions, the Attorney-General Department:

• consider the best way to amend section 35P of the Australian Security Intelligence Organisation Act 1979 (Cth) (‘the ASIO Act’) to improve protections for journalists and media organisations, who make public disclosures about Special Intelligence Operations in good faith (Recommendation 6),
• examine whether the Criminal Code Act 1995 (Cth) should be amended, such that the general secrecy of information offences contain an express harm requirement (Recommendation 3),
• consider whether the ASIO Act and other national legislation should require the prosecution to establish that a secrecy or unauthorised disclosure offence is not in the public interest (Recommendation 8), and
• consider options for how to “strengthen and modernise” shield provisions under the Evidence Act 1995 (Cth) in light of the multiplicity and complexity of current Australian law (Recommendation 11).

The Report also called for the Australian Government to:

• consider whether to “remove the evidential onus on journalist defendants to establish that an unauthorised disclosure is in the public interest” (Recommendation 7), 

• introduce legislation to amend the Crimes Act 1914 (Cth) and other legislation to ensure that public interest factors, including the importance of a free press, are considered before the use of an intrusive or coercive power against a journalist or media organisation (Recommendation 13), and

• urgently introduce legislation to implement recommendations 2 to 5 of the earlier report by the Parliamentary Joint Committee on Intelligence and Security (‘the PJCIS’) on press freedom (Recommendation 14).

The earlier PJCIS report on press freedom titled “Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press" ('the PJCIS Report') was discussed in an earlier TimeBase article.

Calls for Review and Expiditing Reforms

The Report emphasised the need for further review of legislative frameworks. Recommendation 1 calls for the Attorney-General’s Department, in its review of Commonwealth secrecy provisions, to examine in particular how the public interest in a free press and open and accountable government could be better balanced with protecting classified government information.

Recommendation 12 calls for the Australian Government to reconsider the scope and powers of the Commonwealth Integrity Commission. In particular, the Report states that the Commission should be allowed to conduct public hearings in certain circumstances and that statutory thresholds should not prevent the Commission from investigating serious and systemic corruption.

Recommendation 16 calls for the initiation of an independent review of law enforcement and national security laws by the Australian Government. The Report highlights that the review should focus on reducing duplication and aligning laws with Australia’s international human rights obligations.

Furthermore, the Report suggests expediting of several reforms. Recommendation 4 urges the implementation of the revised Protective Security Policy Framework to be expedited. Recommendation 10 proposes that the anticipated reforms to the Public Interest Disclosure Act 2013 (Cth) in addressing deficiencies in the statutory protections of disclosers be accelerated.

Other Recommendations

Other recommendations made by the Report includes:

• Recommendation 2 advises that the Australian Government and the Office of the Australian Information Commissioner collaborate to promote a “culture of transparency”.
• Recommendation 5 asks that the Australian Government collaborate with other stakeholders to develop guidance material for journalists and media organisations regarding compliance with secrecy and disclosure provisions.

Dissenting Report and Additional Comments

The Report also contains a dissenting report by government senators. The dissenting report argues that some of the Report’s recommendations overlapped and/or were inconsistent with earlier recommendations made in the PCJIS’s Report. 

The Australian Greens also made additional comments. Their main recommendation  was the introduction of a new Media Freedom Act, which would seek to recognise:

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Inquiry into Press Freedom (Environment and Communications References Committee, 19 May 2021)