ABC, it’s Not as Easy as 1, 2, 3: The Australian Broadcaster Corporation (ABC) loses legal battle over police raids

March 17, 2020

2 min read

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What's going on here?

The Australian Broadcasting Corporation (ABC) has lost its legal challenge against the Australian Federal Police (AFP) over the police raids of its headquarters last June. These searches were in relation to reports which contained allegations of unlawful killings by Australian soldiers in Afghanistan.

What does this mean?

The AFP’s case against the journalists was that under the Defence Act 1903 and Criminal Code Act 1995, they had “unlawfully obtained military information” and “dishonestly received stolen property”. This was because the stories were based on leaked defence papers.

ABC challenged the validity of the warrant, arguing that it breached an implied constitutional right to freedom of speech. Dr Matthew Collins QC told the Federal Court of Australia that the warrant was too broad in scope and that the leaked documents disclosed allegations of “inarguable public importance”.

ABC managing director David Andersen says that the ruling is an attempt to intimidate journalists and highlights a “serious problem” with Australian security laws.

What's the big picture effect?

The decision highlights the growing concern that national security laws are being used to stifle journalism. For example, the 2018 amendment to the Crimes Act makes it an offence for anyone to communicate classified information from a Commonwealth public servant. Similarly, the 2015 Media Retention Scheme makes it possible for journalists’ sources to be found by allowing government agencies to access metadata kept on file for two years. This poses a risk to source confidentiality, which is recognised by the UN as central to ensuring a functioning democracy and a free, independent media.

In addition, Freedom of Information request refusal rates are at their highest (17%) since records first began in 2010. All these factors indicate how investigative journalism is becoming harder to pursue.

Whilst there are “shield laws” which journalists can rely on to stop government agencies revealing the identity of their sources, they only apply to court proceedings not search warrants. Furthermore, Journalist Information Warrants, which attempt to protect journalists by forcing an agency to obtain a warrant if they wish to access metadata, rely on a public interest test. When matters of national security are considered to be in the public interest, then it is difficult to prevent the disclosure of journalists’ sources.

Australia’s lack of a Charter of Human Rights makes it difficult to protect media freedom. Whilst national security laws could be amended to include media freedom protection, a Bill of Rights or a Media Freedom Act are more likely to afford an effective counterbalance to national security laws.

Report written by Sofija Belajcic

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