In the early 1990s, Harvard University political scientist Robert Putnam embarked on a series of studies that were to make his name synonymous with the concept of what is now widely referred to as social capital.
The idea, basically, is that societies with lots of networks – sports clubs, churches, community organisations – have higher social capital than do societies in which people are not joined in these ways. Putnam assembled a large body of evidence to support his case.
High social capital brought with it norms of reciprocity: people looked out for each other and acted in ways that enhanced the common good. It was especially valuable in times of trouble.
On television on the evening of July 5 2020 we saw social capital being accumulated: ordinary Melburnians bringing carloads of food and other essentials for the 3,000 people locked down in the residential tower blocks of Flemington and Kensington.
On television that same morning, we had seen social capital being destroyed: Senator Pauline Hanson delivering a divisive and ignorant rant, with racist overtones, excoriating those same 3,000 people.
They couldn’t speak English, said Hanson. They were drug addicts who were now having their habits fed at public expense.
Channel Nine’s Today show, on which this atrocity was broadcast, thought it was great sport. It put out a tweet promoting the rant and inviting people to say what they thought. Life, you understand, is measured in analytics – ratings, engagement and eyeballs.
This unleashed a social media backlash, so after studied reflection Channel Nine announced Hanson would no longer be a regular guest on the show. It also deleted the tweet mentioned above. Perhaps Hanson will just be an irregular one when an opportunity arises to ventilate hate speech.
Nine’s director of news and current affairs, Darren Wick, said in a statement:
We don’t shy away from diverse opinions and robust debate, but this morning’s accusations from Pauline Hanson were ill-informed and divisive. At a time of uncertainty in this national and global health crisis, Australians have to be united and supportive of one another.
By then, naturally, the analytics had been harvested.
No. She had exercised her right to free speech, and now she had to wear the consequences. That is the way it works in a democracy: speech that does unjustifiable harm brings consequences.
In this case there was an interesting sidelight to the free speech argument.
At 4.10pm on the afternoon of July 6 – roughly five hours after the story broke – a Google search yielded no link to any story on the issue in Nine’s two major metropolitan daily newspapers, The Age and The Sydney Morning Herald.
Two searches of their websites at that time yielded nothing either.
It was in The Australian – with reaction from Hanson; it was in the Guardian Australia; it was even in the Wauchope Gazette, perhaps the first time it has ever scooped the SMH on a national story.
Long before Hanson got into the act, the large number of Sudanese refugees who live in those towers had for years been stopped, searched and questioned repeatedly by Victoria Police.
Eventually, in 2010, the police were sued under the Racial Discrimination Act by a group of young Sudanese men, who alleged the police engaged in racial profiling. That is, the police took action against them based on their race rather than on anything they were reasonably suspected of having done.
On the basis of statistical evidence from the police force’s own data base, Professor Chris Cunneen, a criminologist from James Cook University who specialises in the policing of Aboriginal people, concluded that racial profiling was happening in Flemington.
In 2013, the case, Haile-Michael v Konstantinidis, was settled at the door of the court, with the police promising to introduce training programs designed to improve relations between the police and ethnic minorities, particularly African communities. However, the police always denied the charge of racial profiling.
It was a long and complex saga, an excellent summary of which can be found here.
Against this troubled background, the potential exists for tension in the towers to reach dangerous levels no matter how well the police on duty there perform now.
By giving rein to her ignorance and prejudice, Hanson has made their job, and the lives of the locked-down residents, even more difficult. She has diminished Australia’s social capital.
And Channel Nine gave her a megaphone to do it with.
At the height of the coronavirus emergency, and on the back of devastating bushfires, Australia’s much awarded and trusted national broadcaster has again been forced to make major cuts to staff, services and programs. It is doing so to offset the latest $84 million budget shortfall as a result of successive cuts from the Coalition government.
In the latest cuts, wrapped up as part of the national broadcaster’s five-year plan,
250 staff will lose their jobs
the major 7:45am news bulletin on local radio has been axed
ABC Life has lost staff but somehow expanded to become ABC Local
independent screen production has been cut by $5 million
ABC News Channel programming is still being reviewed.
Even the travel budget, which allows journalists and storytellers to get to places not accessible by others, has been cut by 25%.
These are just the latest in a long list of axed services, and come off the back of the federal government’s indexation freeze.
Announced in 2018, that freeze reduced the ABC budget by $84 million over three years and resulted in an ongoing reduction of $41 million per annum from 2022.
The indexation freeze is part of ongoing reductions to ABC funding that total $783 million since 2014. In an email to staff, Managing Director David Anderson said the cut to the ABC in real terms means operational funding will be more than 10% lower in 2021–22 than it was in 2013.
To be fair, the way in which the ABC executive has chosen to execute the latest cuts does make some sense, pivoting more towards digital and on-demand services. Right now, the commuting audience that has long listened to the 7:45am bulletin is clearly changing habits. However, with widespread closures of newspapers across the nation, the need for independent and trusted news in depth, that is not online has never been more important.
ABC Life is a particular loss. It has built an extremely diverse reporting team, reaching new audiences, and winning over many ABC supporters and others who were initially sceptical. The work they produced certainly wasn’t the type commercial operators would create.
Clearly the coronavirus pandemic has slashed Australia’s commercial media advertising revenues. But the problems in the media are a result of years of globalisation, platform convergence and audience fragmentation. In such a situation, Australia’s public broadcasters should be part of the solution for ensuring a diverse, vibrant media sector. Instead, it continues to be subject to ongoing budget cuts.
Moreover, at a time when the public really cannot afford to be getting their news from Facebook or other social media outlets, cutting 250 people who contribute to some of Australia’s most reliable and quality journalism and storytelling – and literally saving lives during the bushfires – appear to be hopelessly shortsighted.
The latest Digital News Report 2020 clearly showed the ABC is the media outlet Australians trust the most.
These latest cuts join a long list of axed services in the past seven years. They include
public interest journalism (Lateline and state-based 7.30) axed
While not everyone will miss every program or service that has gone, and even with its occasional missteps, there is no doubt the ABC is the envy of the liberal democracies that do not have publicly funded assets, particularly the United States.
Has the ABC’s budget been increased?
Communications Minister Paul Fletcher has continued to suggest the funding cuts are not real, are sustainable without service reductions for Australians, and has claimed the ABC has received “increased funding”.
The minister’s comments are not consistent with data we published last year based on the government’s own annual budget statements and the reality of the ongoing situation for the ABC.
The government argues base or departmental funding is higher in 2020-21 than it was in 2013-14. The relevant budget papers do show that in 2013-14, the ABC was allocated $865 million for “general operational activities”. The most recent budget statement shows this has increased to $878 million in 2020-21.
So how can it be the ABC budget shows this increase when we have been arguing they are facing an overall cut?
First, we noted last year the complexity of the budget process, which means, for example, the reinstatement of short-term funding can be counted as extra funds, or the ending of such funds, while reducing an agency budget, will not appear as a reduction in allocation.
Second, the 2020-21 ABC budget reflects the inclusion of indexation for increases in CPI-related costs between 2013-14 and 2018-19. This is the funding that is being halted until at least 2021-22.
So despite statements to the contrary, nothing can change the fact the ABC has suffered massive cuts in recent years. The data published last year showed the reality of the ongoing situation for the ABC, with an annual cost to its budget in 2020-21 of $116 million. As the table below shows, taking into account actual budget allocations and adding the items cut, frozen or otherwise reduced, the ABC should have funding of approximately $1.181 billion in 2020-21, not the $1.065 billion it will receive.
It is against this background the latest funding freeze, due to a failure to meet the impact of inflation costs, occurs. While it doesn’t sound like a lot, the three year impact is $84 million, and has resulted in the cuts announced today.
But more importantly, these ongoing cuts represent an attack by the federal government on the broadcaster, its role in democracy, and in keeping Australians safe, informed and entertained.
Federal Communications Minister Paul Fletcher announced three measures last week to help commercial TV broadcasters deal with COVID-19 financial stress.
First, the spectrum tax broadcasters pay the government for access to audiences will be waived for 12 months.
Second, the government has released an options paper on how to make Australian storytelling on our screens fair across new and old platforms.
But it’s the third measure that is a shock: for the rest of 2020, all quotas requiring commercial TV networks to make Australian drama, documentary and children’s television have been shelved. Fletcher said networks can’t create the content because COVID-19 constraints have stalled most production.
But arts, screen directing and screenwriting bodies disagree. They say the quota pause across two financial years will cost jobs. And they’re worried this measure signals how the government will act on regulation options in the paper released at the same time.
Commercial TV broadcasters have had to meet a 55% Australian content quota for decades – including sub-quotas of drama, documentary and children’s programs. Meanwhile, the global streaming services Australian audiences are flooding to, such as Netflix and Stan, do not have to meet any quotas. Nor do other digital platforms in Australia.
The Screen Australia/ACMA paper presents four possible ways forward:
keep the status quo: leave commercial networks as the only platform bound to content quotas
minimal change: ask streaming services to invest voluntarily in Australian content and revise what commercial networks have to produce (maybe axing children’s TV quotas)
establish a “platform-neutral” system to compel and encourage Australian content-making across all of commercial television, digital platforms and global streaming services
deregulation: no one – including commercial networks – would have to meet any content quota requirements.
There is still time for industry bodies to respond to these choices. But option 3, cross-platform incentives and Australian content rules for all, would appeal most to the arts sector. It is the only option of the four which genuinely promotes Australian storytelling on our screens and the jobs that go with it.
Streaming services such as Netflix and Stan will hate that proposition. They and other digital platforms will resist having to follow content rules.
Levelling the field or throwing away the rules?
Commercial networks have long sought a level playing field – and the platform-neutral option offers that. But what they really want is the freedom the other platforms have now: to make and deliver whatever content they think audiences will watch. That’s option 4: total deregulation and all content obligations removed.
Deregulation would hurt Australian creative production jobs. A PricewaterhouseCoopers (PwC) study quoted in the Screen Australia/ACMA paper predicts that if quotas were dropped from commercial television, children’s TV production there would end, drama production would fall 90% and documentary making would halve.
Enter the government’s Relief for Australian media during COVID-19: commercial networks still have to broadcast 55% Australia content in 2020. But they don’t have to make drama, documentary or children’s content as part of that quota.
The Australian Writers Guild (AWG) – representing drama and documentary screen writers – has slammed the quotas pause. They say the government has abandoned creative workers to help a handful of media companies. They’re worried this trial deregulation will change the production landscape forever. And they accuse networks of using COVID-19 as “the excuse they need in their quest to end the quota system once and for all”.
The Directors Guild, Screen Producers Australia and the Media Entertainment and Arts Alliance are also anxious about screen jobs – and where the federal government will go on the quotas issue.
We’ve just seen the government dismiss Australian content quotas as “red tape”. We can only guess where its sympathy for corona-stressed TV networks will take us next.
In a rare show of unity, the heads of Australia’s biggest news organisations – the ABC, Nine and News Corp – have called for stronger legal protections for press freedom in the wake of this month’s police raids on journalists.
Sharing a panel at the National Press Club in Canberra, the media chiefs outlined several key demands:
search warrants to be contestable before the arrival of police
better protection for whistleblowers
a limitation on the number of documents being marked secret by various government bodies
a review of freedom of information laws
an exemption for journalists from being prosecuted under national security laws
First to address the lunchtime crowd was the ABC’s managing director, David Anderson, who called the fact that he was seated alongside News Corp Australasia executive chairman Michael Miller and Nine chief executive Hugh Marks “an unlikely coalition of the willing.”
But he underlined that unity was imperative because “the stakes are so high.”
Anderson made a passionate speech that stressed the ABC’s record of “speaking the truth to the community”. He listed the many investigative reports by ABC journalists that led to royal commissions, from Chris Masters’ 1987 “Moonlight State” report on corruption in Queensland’s police force to more recent ones in banking and aged care.
He also referred to the work of ABC journalists Dan Oakes and Sam Clark on a series of stories called the Afghan Files, the reporting that led to the AFP raid on the ABC’s Ultimo headquarters in Sydney.
Anderson argued that it was difficult for the media to do its job with the “patchwork of laws” in place and whistleblowers running the risk of “being cowed out of existence”. Most importantly, he stressed that
decriminalising journalism is a mandatory first step.
‘Balance too weighted towards secrecy’
Marks claimed that press freedom had been eroded in Australia due to a mix of technological change, bad legislation and over-zealous officials. He said it was now
more risky and it’s more expensive to do journalism that makes a real difference in this country than ever before.
He argued that media freedom was under threat because “governments and institutions are becoming more secretive” and that national security was sometimes invoked to shut down debate on spurious grounds. He believed
the balance is too weighted towards secrecy.
Marks took issue with various current laws, arguing that defamation laws didn’t achieve what they were meant to and the huge rise in suppression orders and complexity of Freedom of Information laws led to an “obstacle course of legal hazards”. Bearing this in mind he said:
This would be the stuff of pantomine were it not so serious.
Miller drew attention to Australia’s slide down the 2019 World Press Freedom Index to number 21 – below Suriname and just ahead of Samoa – and commented that Australia should instead be “leading by example”. He believed that two AFP raids in two days, plus “strong information that other raids were planned” equalled “intimidation not investigation”.
Miller said News Corp had called on Attorney-General Christian Porter to make sure that its journalist, Annika Smethurst, doesn’t face criminal charges after the raid on her home.
He said many of the faults in our laws could be “easily corrected to reset the balance between security and the right to know”.
But there is a deeper problem – the culture of secrecy. Too many people who frame policy, write laws, control information, and conduct court hearings, have stopped believing that the public’s right to know comes first.
More action, fewer promises
The most interesting part of the discussion came when ABC’s Matthew Doran asked the panellists if they thought the public would get behind changing laws to suit a group of privileged journalists. Marks said it was a start.
Freedom of speech feels very personal to me. We have to make it feel personal for the public.
But there were some in the room who appeared less reassured by the rhetoric on display. The Guardian’s Katherine Murphy pointed out that when these laws were passed “tranche by tranche” in recent years, there was not much media focus on these changes.
Sky’s David Speers also seemed unimpressed that the media chiefs weren’t calling for a parliamentary inquiry, asking to whom they were speaking in regard to change. Miller’s reply was that they were releasing a document outlining their key demands and that the three of them being there together indicated the importance of the issue.
At the end of the day, perhaps the presence of all three media chiefs united together was singular. Immediately following the event, press freedom campaigner and University of Queensland Professor Peter Greste said “that rare show of unity is hard to understate” and that the AFP raids had
created a rare moment of opportunity that we need to seize.
Nonetheless, he thought it
deeply concerning that none of them seemed to have had any meaningful commitments to action from the government.
News Corp is taking its battle to the high court as it believes that the search warrant on Smethurst’s house was vague and incomplete.
The ABC, likewise, is challenging the police raid on its premises in federal court. Anderson would like the ABC’s downloaded data returned and wants there to be a “threshold test” regarding the justification for when the police can enter media premises.
The publicity from this unified initiative is no doubt positive, but it is entirely possible that a newly elected government could sit back and wait for these legal cases from News Corp and the ABC to pass through the courts before taking any action.
There is little pressure on governments to make concessions to an unpopular press in an era of suspicion of the media, whipped up by populist movements around the world.
In the first week of June, the AFP raided the home of News Corp journalist Annika Smethurst and the ABC’s Sydney headquarters.
The raids concerned stories published over a year earlier, based on documents leaked from the Department of Defence. This week, the ABC and News Corp launched separate legal challenges to those raids. As David Anderson explained, the ABC is challenging the warrant “on several technical grounds that underline the fundamental importance of investigative journalism and protection of confidential sources”.
The ABC commenced proceedings in the federal court, whereas News Corp took its challenge directly to the High Court. Nonetheless, both cases will raise similar legal issues, with press freedom at the heart of each challenge.
Both the ABC and News Corp are arguing that the AFP warrants infringe the “implied freedom of political communication” protected by the Australian Constitution. This challenge sets national security and press freedom against one another and could lead to groundbreaking developments in constitutional law.
But a closer look reveals the thinness of the implied freedom as a true protection for press freedom and the need for clearer protections.
The Australian First Amendment? The implied freedom of political communication
The Australian Constitution contains very few rights. None resemble the US Constitution’s First Amendment which protects, among other things, free speech and a free press.
In 1992, the High Court read between the lines of our Constitution to hold that it protects the free flow of political communication. This implication was justified as necessary to protect our system of representative and responsible government and, specifically, to enable voters to make an informed choice at elections.
The implied freedom is not a right to free speech. First, it only protects political communication, not speech generally. Secondly, it is not a personal right that may be wielded against the government. Instead, the implied freedom is a limit on legislative power, and not an absolute one at that. This means the Constitution only prohibits Commonwealth, state and territory governments from passing legislation that unjustifiably limits political communication.
The courts will consider three questions when they determine whether the law that supported the AFP raids violates the implied freedom. It is far from clear whether the media organisations’ challenges will pass this three-stage test.
Step 1: A burden on political communication?
The first question is whether the law burdens (restricts) political communication. In this case, the burden is unclear. The warrants were issued to further investigations into government leaks and the handling of classified information, but the leaks had happened and the stories published over a year earlier. In this sense, the political communication had run its course unhindered. If no burden on political communication is established then the challenge will fail.
On the other hand, the execution of the warrants is almost certain to stifle public interest reporting. The raids may deter journalists from investigating and publishing stories based on classified materials, even where they reveal corruption or misconduct.
Even more seriously, the raids will deter potential whistleblowers from speaking out. This impact may be too vague for the High Court to engage with – after all, how could a lawyer present evidence of a general chilling effect? Nonetheless, it is a serious and severe consequence of police crackdowns on media, with a direct impact on each voters’ capacity to make a true and informed choice at the ballot box.
Step 2: A legitimate purpose?
If there is a burden on political communication, the second stage of the test will ask whether the burden is for legitimate purpose – that is, a purpose compatible with our system of government.
While some may criticise the AFP raids as reflecting an illegitimate purpose of targeting journalism critical of the government, the warrants also undoubtedly had a legitimate aim: the maintenance of national security by ensuring the integrity of government secrets.
Step 3: A proportionate measure?
This third stage of the test is the trickiest. It asks whether the restriction on political communication is justified and proportionate in light of its legitimate purpose. Is it tailored to that purpose? Were there alternative, less-restrictive measures that could have been adopted? In this kind of balancing exercise, reasonable minds can, and will, differ.
National security is a serious concern that goes to the very existence of the nation. It is universally accepted that some rights and freedoms must bend to the security of the nation.
Press freedom, on the other hand, including source confidentiality and the capacity to report on government misconduct, is critical to the rule of law and our democratic system. The courts will be faced with the question of when national security justifies the erosion of press freedom, and when it does not. This is no easy or predictable task.
In the context of the AFP raids, the present threat to national security posed by the published articles appears to be weak. On one view, the burden on political communication was severe and arguably unjustified, provided the court accepts the chilling effect that the raids will have on journalists and whistleblowers.
Alternatively, the limit on communication may be nonexistent, as the raids didn’t prevent the stories from being published. There are likely to be further interests and facts that weigh into this balance.
On available information, it is only clear the ABC and News Corp will face a number of complex and unpredictable hurdles in convincing a court that the warrant powers violate the Constitution.
The protection of press freedom
The implied freedom of political communication serves an important purpose in protecting political speech from unjustified infringement. Its capacity to protect press freedom remains untested before the High Court, and this challenge presents a golden opportunity for the court to recognise the place of the fourth estate within our constitutional framework.
But the implied freedom is not a right to free speech or a free press. It hinges on the concept of “justification”, and when national security is placed on the scales it is difficult to find a counterweight to meet it. Hence national security is regularly invoked to justify infringements of our basic rights and freedoms, and it is difficult to know how and when these infringements are unnecessary.
Robust protection of press freedom in Australia is unlikely to be achieved through the interpretation of a Constitution that makes no reference to the fourth estate, freedom of speech, the rule of law, or other basic rights or freedoms. Clearer protections are needed. This could take the form of legislative recognition of press freedom.
Charters of Rights such as those in Victoria, the ACT and Queensland also operate to ensure basic freedoms are taken into account, not just in court but in parliament and across all public sector decision-making. This approach has clear advantages over the technical and unpredictable application of implied constitutional freedoms months after the event.
In the absence of these kinds of reforms at a national level, we wait to see if the High Court will once again read between the lines of our Constitution and recognise a central place for the free press in Australia.
Queensland Liberal senator James McGrath had said the ABC’s headquarters in Sydney, Melbourne and Brisbane should be sold, and the funds used to retire government debt.
In the latest Coalition attack on the national broadcaster, McGrath declared: “The ABC currently operates like a closed-shop, left-wing vortex with an appointments process more secretive than the selection of the Pope”.
The ABC has faced repeated criticism and claims of bias since the Coalition was elected in 2013. A year ago the Liberal Party’s federal council urged it should be privatised – a call immediately rejected by the government.
McGrath said it “needs to shift its headquarters away from the inner-city latte lines to where the ‘quiet Australians’ live, work and play”. It was long past time that it moved to the suburbs or regions, he said.
Questions on notice submitted under Senate estimates showed the ABC’s property portfolio was worth $522 million, he said. “Of the 37 properties in the ABC’s portfolio, Ultimo, Brisbane South Bank and Melbourne Southbank account for 81% of the portfolio’s value. That’s $426 million. What is this achieving for the taxpayer?”
McGrath said given modern technology, there was no reason why the ABC couldn’t operate out of places such as Cairns, Townsville, Mackay, Caboolture or Beenleigh.
“For the purposes of conducting interviews, the ABC could easily copy the Sky News model of a small booth close to capital city CBDs.”
He said this was part of a three point plan he proposed for the ABC “to return to its core duties of delivering accurate, factual and unbiased news services and content”.
“The other parts of the plan include calling for all ABC roles to be advertised externally to broaden the diversity of views within the organisation, and for the government to commit to a full review of the ABC’s Charter, taking into account the changing media environment.”
McGrath issued his statement off the back of comments by Nationals leader Michael McCormack who, when asked on Thursday whether the ABC, if it had more funding, could fill gaps left by WIN closures, suggested it could save money by relocating from Ultimo.
“I’m sure that there are plenty of empty shop fronts in Sale or Traralgon or elsewhere where the ABC could quite easily relocate to a regional centre and save themselves a lot of money and then invest that money that they’ve saved by not being in the middle of Sydney, where they don’t need to be, out at a regional centre.”
McCormack’s office later described his comment as tongue-in-cheek. McGrath’s office said his statement was not tongue-in-cheek.
WIN TV is shutting down newsrooms in Orange, Dubbo, Albury, Wagga Wagga in NSW, and Wide Bay in Queensland. McCormack, who formerly edited The Daily Advertiser in Wagga, said he was saddened by the decision.
“I appreciate that the market is tight and the margins are very slim. But I’m really disappointed that WIN has taken this decision. I’m really disappointed that those news bureaus are closing because they’ve done such a sterling job, in some cases, for up to 30 years.”
The Australian Federal Police has this week conducted two high-profile raids on journalists who have exposed government secrets and their sources.
On Tuesday, seven AFP officers spent several hours searching News Corp journalist Annika Smethurst’s Canberra home, her mobile phone and computer. The AFP linked the raid to “the alleged publishing of information classified as an official secret”.
This stemmed from Smethurst’s 2018 article, which contained images of a “top secret” memo and reported that senior government officials were considering moves to empower the Australian Signals Directorate (ASD) to covertly monitor Australian citizens for the first time.
Soon after, 2GB Radio Presenter Ben Fordham revealed he had been notified by the Department of Home Affairs that he was the subject of a similar investigation, aimed at identifying the source of classified information he had reported regarding intercepted boat arrivals.
The reaction to the raids was immediate and widespread.
The New York Times quoted News Corp’s description of the Smethurst raid as “a dangerous act of intimidation towards those committed to telling uncomfortable truths”. The Prime Minister was quick to distance his government from the AFP’s actions, while opposition leader Anthony Albanese condemned the raids.
The crackdown of the past few days reveals that at least two of the core fears expressed by lawyers and the media industry were well-founded: first, the demise of source confidentiality and, secondly, a chilling effect on public interest journalism.
Upon finding out he was the subject of an investigation aimed at uncovering his sources of government information, Ben Fordham declared
The chances of me revealing my sources is zero. Not today, not tomorrow, next week or next month. There is not a hope in hell of that happening.
Source confidentiality is one of journalists’ most central ethical principles. It is recognised by the United Nations and is vital to a functioning democracy and free, independent, robust and effective media.
One of the greatest threats to source confidentiality is Australia’s uniquely broad data surveillance framework. The 2015 metadata retention scheme requires that all metadata (that is, data about a device or communication but not, say, the communication itself) be retained for two years. It may then be covertly accessed by a wide array of government agencies without a warrant. Some reports suggest that by late 2018, some 350,000 requests for access to metadata were being received by telecommunications service providers each year.
The government was not blind to the potential impact of this scheme on source confidentiality. For example, obtaining metadata relating to a journalist’s mobile phone could reveal where they go and who they contact and easily point to their sources.
This led to the introduction of the “Journalist Information Warrant” (JIW). This warrant is required if an agency wishes to access retained metadata for the direct purpose of identifying a professional journalist’s source.
So, access to a professional journalist’s metadata in order to identify a confidential source is permitted, provided the access has a particular criminal investigation or enforcement purpose and the agency can show it is in the public interest and therefore obtain a JIW.
This week’s raids suggest that either JIWs could not be obtained in relation to Smethurst, Fordham or the ABC Journalists, or the journalists’ metadata did not reveal their sources, or the AFP did not attempt to access their metadata.
Alternatively, if metadata had identified the journalists’ sources, it is less clear why these dramatic developments took place.
After 2015, journalists were advised to avoid using their mobile devices in source communications. They were also encouraged, wherever possible, to encrypt communications.
As well as expanding computer access and network access warrants, the Act provided a means for government agencies to co-opt those in the telecommunications industry to assist agencies with their investigations. This could include covertly installing weaknesses and vulnerabilities in specific devices, circumventing passwords or allowing encrypted communications to be decrypted. A warrant would then be required to access the device and communication data.
It is impossible to know whether Australian journalists have been targeted under the Act or had weaknesses or spyware installed on their personal devices. This week’s raids suggest the AFP would be prepared to target journalists under this framework in order to identify journalists’ confidential sources.
However, this could only be done for some purposes, including in the investigation of a secrecy offence.
In June 2018, the government introduced a suite of new espionage, foreign interference and secrecy offences. This included an offence of current or former Commonwealth officers communicating information, obtained by virtue of their position, likely to cause harm to Australia’s interests. This offence is punishable by imprisonment for seven years. If the information is security classified or the person held a security classification, then they may have committed an “aggravated offence” and be subject to ten years’ imprisonment.
This week’s raids reveal just how common it is for public interest journalism to rely on secret material and government sources.
But the journalists themselves may also be facing criminal prosecution. The 2018 changes include a “general secrecy offence”, whereby it is an offence (punishable by imprisonment for five years) to communicate classified information obtained from a Commonwealth public servant. Fordham’s radio broadcast about intercepted boat arrivals was, for example, a clear communication of classified information.
Again, journalists are offered some protection. If prosecuted, a journalist can seek to rely on the “journalism defence” by proving that they dealt with the information as a journalist, and that they reasonably believed the communication to be in the public interest. The meaning of “public interest” is unclear and, in this context, untested. However, it will take into account the public interest in national security and government integrity secrecy concerns as well as openness and accountability.
Protecting media freedom
Australia has more national security laws than any other nation. It is also the only liberal democracy lacking a Charter of Human Rights that would protect media freedom through, for example, rights to free speech and privacy.
In this context, journalists are in a precarious position – particularly journalists engaged in public interest journalism. This journalism is vital to government accountability and a vibrant democracy, but has a tense relationship with Australia’s national interests as conceived by government.
National security law has severely undercut source confidentiality by increasing and easing data surveillance. National security laws have also criminalised a wide array of conduct related to the handling of sensitive government information, both by government officers and the general public.
And these laws are just a few parts of a much larger national security framework that includes: control orders, preventative detention orders, ASIO questioning and detention warrants, secret evidence, and offences of espionage, foreign interference, advocating or supporting terrorism, and more.
JIWs, and the inclusion of a journalism defence to the secrecy offence, recognise the importance of a free press. However, each of these protections relies on a public interest test. When government claims of national security and the integrity of classifications is weighed into this balance, it is difficult to see how other interests might provide an effective counterbalance.
One of the most disturbing outcomes is not prosecutions or even the raids themselves, but the chilling of public interest journalism. Sources are less likely to come forward, facing risk to themselves and a high likelihood of identification by government agencies. And journalists are less likely to run stories, knowing the risks posed to their sources and perhaps even to themselves.
Against this background, the calls for a Media Freedom Act, such as by the Alliance for Journalists’ Freedom, have gained significant traction. It may take this kind of bold statement to cut across the complexities of individual laws and both recognise and protect the basic freedom of the press and the future of public interest journalism in Australia.
The sheer audacity of Al Jazeera’s three-year ruse is astounding.
The news company’s investigation unit has carried out a sting that has captured both the National Rifle Association of the United States and Australia’s One Nation Party in all sorts of compromising positions.
The series, “How to sell a massacre”, has exposed the NRA’s manipulative media practices and revealed One Nation’s desire to cosy up to the US gun lobby to find ways of funding its domestic campaign to overturn our gun laws.
The documentary has exposed the thinking of some of the party’s most senior figures about taking control of the parliament and their obsession with Muslim immigration.
Al Jazeera senior producer Peter Charley did this by placing actor-turned journalist Rodger Muller in the field to impersonate the head of a fake pro-gun lobby group called Gun Rights Australia. The pair then pandered to One Nation’s desire for financial support and international endorsement and exploited US gun lobbyists’ fears about Australia’s strict gun laws.
They got away with this for three years, gaining unprecedented access to the halls of the NRA and to the minds of two One Nation officials, Queensland state leader Steve Dickson and the party’s controversial chief of staff, James Ashby.
There are at least two ethical questions about this documentary.
The first is whether the producers have overstepped the mark by not only reporting what they saw but creating the scenario in which the events occurred.
The second concerns the program’s extensive use of hidden cameras.
On the first matter, the issue is whether the program created the meeting between One Nation and the NRA and therefore acted irresponsibly by entrapping the subjects of the film.
In his account of what happened, Rodger Muller put it this way:
Then Charley asked me to contact Pauline Hanson’s One Nation – a far-right pro-gun Australian political party. Charley wanted me to find out if any connections existed between One Nation and the US gun lobby. And so began another chapter in my life as an avid “gunner”.
When I approached One Nation Chief of Staff James Ashby and mentioned my NRA connections, he told me he wanted to visit the US to meet them. I set up meetings in Washington and soon Ashby and One Nation’s Steve Dickson were on a flight to the US.
I was there, ready to meet them. And our hidden cameras were all primed and ready to go.
This suggests that Muller and Al Jazeera were catalysts and enabled the connection between One Nation and the NRA. But it also demonstrates that there was a desire on the part of One Nation to meet the US gun lobby, and – as later becomes clear – the party was motivated to do so to raise funds and make political connections.
So is this responsible journalism?
The Media Entertainment and Arts Alliance code of ethics – the protocols by which thoughtful journalists operate in Australia – is largely silent on this issue.
It doesn’t say anything explicitly about creating the news by making connections between players to observe what happens next. But it does stress the need to “report and interpret honestly”.
It calls on reporters to use “fair, responsible and honest means to obtain material” and to “respect personal privacy”. But the code also acknowledges journalists both scrutinise and exercise power. The preamble makes the point that journalism animates democracy.
Most importantly, in its guiding cause, the code states:
ethical journalism requires conscientious decision-making in context.
It allows for any of its other clauses to be overridden to achieve “substantial advancement of the public interest”.
So is it wrong to make and enable connections that might not otherwise happen in order to observe the outcomes? Is this fair and honest and responsible?
Like many things, the answer might be dependent on the motivation. From where I stand, it looks like Al Jazeera’s motivation was to get to the heart of something fundamentally important that would otherwise remain opaque.
Breaches of privacy and deceptive conduct
And while we’re pondering that one, there’s the perennial ethical question about hidden cameras.
This isn’t your garden variety case of a tabloid TV program exposing a dodgy car salesmen or a real estate scammer. In this film, the use of hidden cameras directly places several parts of the code of ethics against that all important public interest override.
The question is whether the public’s right to know is so important that it justifies the film’s deceptive conduct and breaches of privacy.
For me, the use of hidden cameras can clearly be defended when a publicly funded Australian political party, that knows what it’s doing is dodgy, is making connections to “change Australia” by gaining the balance of power in the parliament and “working hand in glove with the United States”.
It is highly likely the extent of One Nation’s behaviour could only be exposed through this sort of reportage. James Ashby is captured repeatedly reminding others they need to be secretive in their dealings with the NRA.
The public has a clear right to know what One Nation is up to. This is especially the case when part of its mission is to learn new techniques to manipulate the public debate to pursue an agenda of overturning the ban on guns following the 1996 Port Arthur Massacre.
The NRA are media experts
There’s something else about this program that justifies the use of hidden cameras. It exposes the utter cynicism of the media messaging and media training that underpins the NRA like nothing I have ever seen before.
In a closed meeting with NRA officials, One Nation is given a crash course on how to deal with bad press, particularly following mass shootings.
Lars Dalseide, an NRA media liaison officer, is captured saying pro-gun lobbyists should smear supporters of gun control by accusing them of exploiting the tragedy.
He even provides a useful retort to anyone who might suggest that gun ownership might be a factor in a mass shooting. He says:
How dare you stand on the graves of those children to put forth your political agenda.
“Just shame them to the whole idea,” he suggests, by arguing pro-gun campaigners should declare to opponents:
If your policy isn’t good enough to stand on its own, how dare you use their deaths to push that forward.
As he says this, Ashby is recorded replying: “That’s really good, very strong”.
Some of that phrasing seems familiar in the immediate aftermath of the Christchurch massacre, suggesting parts of the NRA’s playbook have already made their way down under.
This documentary underscores two things.
The brutal tactics of the gun lobby and the operations of One Nation need exposing. Journalism sometimes has to take on the unsavoury job of extracting the truth from those who do not want to share it.
Despite some reprieve in the 2019 federal budget, the ABC is still in dire financial straits. More job losses and a reduction in services remain on the agenda.
The Coalition government has provided another three years of tied funding of A$43.7 million specifically for the national broadcaster’s “enhanced news-gathering” program. This program supports local news (particularly regional and outer-suburban news gathering), national reporting teams and state-based digital news.
But this funding doesn’t address the broadcaster’s need for more stability in its operational funding.
In July, the ABC will start to feel the full impact of a three-year, A$83.8 million indexation freeze on its funding, which was contained in the 2018 budget. So devastating is the size of that cut – and the ones prior to that – that ABC managers are almost completely focused on money, undermining their capacity to be strategic about the future.
There is no provision in the 2019 budget to restore the funding lost over the past six years and certainly no boost to cater for the dynamic and changing media environment.
Audiences who value what the ABC does now – and what it needs to be doing to support Australian democracy into the future – should take a closer look at the numbers, the way the money has been allocated and the impact of that.
To illustrate the need for more secure operational funding for the ABC, one of the authors of this article, Michael Ward, conducted research on just how much the broadcaster stands to lose in the aggregate over the course of an eight-year period. Ward used a number of public financial sources to build the table below, including ABC portfolio budget statements and ABC answers to Senate Questions on Notice
One of the difficulties in looking at budgets is the way forward estimates work. As the figures in the table show, the past six budgets have included measures to reduce, remove or freeze (indexation) ABC funding, without adding any new funding initiatives.
This has resulted in an accumulated reduction in available funding of A$393 million over a five-year period, starting from May 2014. According to current budget forecasts, this also means the ABC stands to lose A$783 million in funding by 2022, unless steps are taken to remedy the situation.
The Coalition government and others would argue, however, the ABC actually received a reprieve in this year’s budget with committed funding for “enhanced news gathering” because it treats as “new” the renewal of tied fixed-term funding as it expires.
The “enhanced news gathering” and digital delivery funding was first enacted by the former Labor government in 2013. Although “enhanced news gathering” funding has been renewed twice by the Coalition government since then, including in this year’s budget, the amount allocated for the program was slashed in 2016.
So, while it appears that the current budget announcement is good news for the ABC, the reality is, it is simply a continuation of what should be seen as core business.
One way governments of all ilks have tried to control the ABC – and to win voters over – is by providing tied funding to specific programs like this. One of the earliest examples of tied funding was a National Interest Initiative by the Howard government in 2001, and later the Rudd government’s Children’s Channel and Drama Funding Initiative of 2009. These were seen as core to the ABC’s work, and were eventually made part of the ABC’s ongoing budget.
The problem, of course, is that voters do not understand the impact of the cessation of limited-term, tied funding programs.
We argue that tied funding is also contrary to the principles of independent public broadcasting because it effectively forces the broadcaster to prioritise its activities and programs at the current government’s whim. It also inhibits longer-term effective financial planning by the ABC.
Tied funding used by all parties
If elected, the ALP has committed to restore the A$83.8 million indexation freeze for the ABC included in last year’s budget. It has also promised an additional A$15 million for specific projects to restore short wave radio to the Northern Territory and add more local and regional content, emergency broadcasting and a news literacy program aimed at combating misinformation campaigns online.
These commitments are important, but the freeze is just the tip of a funding iceberg that the ABC has been dealing with for the past six years. The continuation of a tied funding approach doesn’t address the underlying budget problem. More needs to be done.
JERAA argued that the ABC has been cowed by repeated parliamentary inquiries, funding cuts and efficiency reviews. These have had a severe impact on the broadcaster’s ability to perform its important role for the Australian people, which includes production of excellent public affairs reporting, local programming, international news, children’s programming and services on a range of current and emerging platforms.
Tied funding stops the ABC from meeting the core components of its legislated obligations, particularly digital content delivery, where the cost of success – increased take up of services – carries an extra financial burden, unlike analogue broadcasting.
Unless the ABC has ongoing stability of funding and ideally an increase that allows it to keep innovating, it won’t be able to maintain relevance in this fast-moving, globalised media world, nor will it be able to continue as a watchdog on people in power, particularly governments.