Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations

Posted on March 18, 2021 by particularkev

Brendan Clift, The University of MelbourneAttorney-General Christian Porter is suing the ABC for defamation and claiming aggravated damages.

Porter is claiming that an article published last month included false allegations against him in relation to a historical rape. A statement from his lawyer says although Porter was not named, the article made allegations against a senior cabinet minister “and the attorney-general was easily identifiable to many Australians”.

So, how does defamation law work, what is its impact on the media, and why has Australia been labelled the defamation capital of the world?

What is considered defamatory?

Defamation can be defined as a false statement about a person to their discredit. The legal action has three elements for the complainant to prove: publication, identification, and defamatory meaning. Significantly, the falseness of the published material is presumed.

A statement has defamatory meaning if it would lead an ordinary, reasonable reader to think less of the complainant, or if it would cause the complainant to be shunned or subjected to more than trivial ridicule.

Publication is broadly defined, including any communication to someone other than the complainant, whether written or spoken.

And identification requires reference to the complainant, which could be indirect if the ordinary, reasonable reader is able to read between the lines — as Porter is claiming in his case.

A news organisation might carefully avoid naming a person, as the ABC did, but it could still be liable if a reader would have known who that person was. Porter was named in social media chatter around the ABC’s story – whether that sort of speculation constitutes identification is questionable, but not inconceivable.

Where a complainant’s identity is confirmed after publication — as Porter’s was when he fronted the media two weeks ago — identification becomes straightforward for later downloads of the story. Each download is treated as a separate potential defamation under the law. At the time of writing, the ABC’s report was still on its site.

The elements of defamation are encapsulated in the expression cherished by news editors:

journalism is printing what someone else does not want printed.

This reflects the reality that the media is exposed to defamation risk daily — and the risk is serious.

A complainant can sue any person involved with the story’s production, such as journalist Louise Milligan in the ABC’s case. Add the fact the complainant doesn’t need to prove any harm was actually done — and aggravated damages awards are uncapped — and it’s easy to see why defamation inspires fear among media organisations.

What defences can media organisations use?

The defences to defamation are notoriously difficult to establish.

While the complainant need not prove the material is false, the defendant can escape liability by showing that it’s true. In the Porter case, this means the ABC would need to prove matters from more than 30 years ago raised in a letter by a woman who is now deceased.

Moreover, the defendant must prove the truth of the “defamatory stings” — the discrediting imputations that an ordinary, reasonable reader would take from the published material, regardless of whether those were the intended meanings.

Even proving the truth of ordinary, factual reporting can be challenging in cases where journalists’ sources, such as whistleblowers, have legitimate reasons to preserve their anonymity.

These difficulties might be ameliorated if Australia had a “reportage” defence, like that of the United Kingdom. This defence excuses the media for reporting defamatory statements by third parties on matters of public interest, provided the media has merely reported the statement without adopting it.

Australia does have a “reasonable publication” defence, but its requirements have proven near-impossible for media organisations to satisfy in court.

For example, the defence is probably a non-starter in cases where a news organisation reports unproven criminal allegations and the person of interest, being unnamed, is given no right of reply in the story.

Reforming defamation

Changes to Australia’s defamation law are in the works. Some will help potential defendants, such as a new threshold of serious harm and tighter time limits for bringing actions.

Other reforms will require a wait-and-see approach, like the new public interest defence, which aims to rebalance defamation law in favour of public interest reporting but retains elements of the old reasonable publication defence.

This leaves room for courts to maintain a tough stance on what is regarded as “reasonable” media conduct when it comes to defamation. That stance recently saw NSW courts hold three Australian media companies liable for comments that were posted on their Facebook pages about a former youth detention detainee.

More meaningful reform might have established stronger public interest and reportage defences, or required complainants to prove that the material published about them was false – or even that the publisher knew it to be false but published it anyway.

Defamation cases involving public figures in the United States require proof that the publisher knew the material to be false, which is why US politicians almost never sue for defamation.

In Australia, by contrast, politicians do sue – and successfully. They often opt for the Federal Court where, compared with the state courts, they are likely to have their matter heard by a judge alone, rather than having to convince a jury of the merits of their case.

Citizens and institutions seeking to hold those in power to account are too often being silenced by our current defamation laws. In a strong democracy like Australia, we can — and must — do better.

Brendan Clift, Graduate researcher, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Christian Porter sues ABC and reporter Louise Milligan for defamation

Posted on March 15, 2021 by particularkev

Michelle Grattan, University of Canberra

Attorney-General Christian Porter has commenced defamation proceedings in the Federal Court against the ABC and journalist Louise Milligan.

He is suing over an article the ABC published on Friday, February 26, which he says made false allegations against him in relation to a person he met when he was a teenager.

The story reported police had been notified of a letter sent to Scott Morrison detailing an alleged historical rape by a federal cabinet minister.

A statement from Porter’s lawyer Rebekah Giles says although Porter was not named, the article made allegations against a senior cabinet minister “and the Attorney-General was easily identifiable to many Australians”.

The lawyer’s statement, issued on Monday, says that in the last few weeks Porter “has been subjected to trial by media without regard to the presumption of innocence or the rules of evidence and without any proper disclosure of the material said to support the untrue allegations”.

“The trial by media should now end with the commencement of these proceedings,” it says.

“The claims made by the ABC and Ms Milligan will be determined in Court in a procedurally fair process.”

The statement says Porter will give evidence “denying these false allegations on oath.”

The ABC and Milligan have damaged Porter’s reputation by publishing the allegations, the statement says.

“This Court process will allow them to present any relevant evidence and make submissions they believe justifies their conduct in damaging Mr Porter’s reputation.”

The statement points out that under the Defamation Act, it is open to the ABC and Milligan to plead truth in their defence – “and prove the allegations to the lower civil standard”.

Porter’s lawyers include two leading barristers, Sue Chrysanthou SC, and Bret Walker SC, who appeared for Geoffrey Rush when he successfully sued the Daily Telegraph for defamation. Walker also acted for Cardinal George Pell, whose child sex abuse convictions were overturned in an appeal before the High Court.

A statement of claim filed in the proceedings says the article carried the defamatory imputation that Porter brutally raped a 16-year-old girl in 1988.

It says the ABC and Milligan published the article without any attempt to give Porter an opportunity to respond.

It accuses them of selecting portions of the material in order to make the allegations against Porter appear as credible as possible when other portions demonstrated the allegations were not credible.

“Milligan engaged in a campaign against Porter in order to harm his reputation and have him removed as Attorney-General,” the statement says.

The ABC said it would defend the action.

Porter’s office announced late Monday that he will return to work on March 31. He is currently on mental health leave. His return date means he will miss all the current parliamentary sitting and will not be back in the House of Representatives until the budget session in May.

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

What’s in the ‘public interest’? Why the ABC is right to cover allegations of inappropriate ministerial conduct

Posted on November 13, 2020 by particularkev

Alexandra Wake, RMIT University

Immediately after ABC’s Four Corners aired allegations about the conduct of government ministers Alan Tudge and Christian Porter, questions were raised about whether the report was in the “public interest”.

The Australian’s editor-at-large, Paul Kelly, said on Q&A that Porter was “trashed” by the program, adding

What the ABC has done tonight is that it’s crashed through some media barriers and created new media barriers. How far do we go in terms of our definition of the public interest?

We need to be very careful about the damage we do to people’s reputations here and ask ourselves is that an accurate portrait or was it a caricature?

Asked about the story in a Senate committee before the story aired, ABC managing director David Anderson defended it as “absolutely” being in the public interest.

It goes to conduct of ministers, ministers of the Crown, to be held to the highest standard in society. That’s the nature of the story.

Porter has denied the claims made against against him. He had earlier discussed considering legal options against the ABC, but played that down in an interview yesterday.

Even tawdry stories are in the public interest

Despite Porter’s protestations, the ABC clearly had an obligation to air a story that contained allegations of ministerial misconduct (however tawdry).

News reports about politicians, sex and booze are as old as time and have brought shame to many a politician, from the former Deputy Prime Minister Barnaby Joyce to Deputy Labor Leader Gareth Evans and the UK Secretary of War John Profumo.

The one clear duty of journalism is to hold those in power to account, and that appears to have been lost on those members of government as they reportedly attempted to pressure the ABC, its managers and journalists, over the broadcast.

Barnaby Joyce became embroiled in a scandal over his affair with his former media adviser.
Lukas Coch/AAP

Standards for those in government

Many ethical issues arise from the broadcast, the attempt to pressure the ABC and the legal threats that have followed.

Even before the program had made it to air, the ABC’s management found themselves under attack, with an excruciating Senate Estimates Committee hearing a couple of hours before the broadcast.

But it certainly wasn’t a quick piece of “gotcha” journalism with a blurry photo at its centre. The Four Corners team have an exacting process to their work. For this story, the ABC said they interviewed 200 people over several months. They also contextualised the story beyond the two central politicians to raise real concerns about the place and safety of women who work in Parliament House.

Anderson also said the allegations had been thoroughly sourced and checked legally. Those named in the story were given “ample” opportunity to respond.

Moreover, while the so-called “bonk ban” on ministers having sexual relations with their staff was only introduced by Prime Minister Malcolom Turnbull in 2018, Cabinet ministers have had rules governing their behaviour since John Howard first established a public ministerial code in 1996.

Turnbull says he warned Porter about ‘unacceptable’ behaviour with a young female staffer.
Mick Tsikas/AAP

Members of the Morrison Cabinet now sign up to a code of conduct which says they will “act with integrity” and be “open to public scrutiny and explanation”.

Specifically, there is no grey area in these ministerial standards on the point of sexual relationships with staff:

2.24. Ministers must not engage in sexual relations with their staff. Doing so will constitute a breach of this code.

Prime Minister Scott Morrison pointedly said this week that neither Porter nor Tudge were in breach of his code of conduct.

But allegations of sexual misconduct and power imbalances, even historic ones, are still clearly a cause for community concern, and cannot not be ignored by journalists or political leaders. Such matters are no longer private affairs between consenting adults.

Just ask the complainants at AMP, the former CEO of Seven in WA, or even former US president Bill Clinton.

Action should be taken

Regardless of the salacious allegations made on the Four Corners program, there is also a point to be made about the hypocrisy of politicians who market themselves as having “family values” and demand others follow “Australian values”.

Certainly, it is not edifying to watch details of alleged impropriety by politicians broadcast on television, and it’s uncomfortable that such stories inevitably impact those who are innocently caught up in the furore (particularly partners and children).

Tudge did issue a statement saying he regretted his actions “and the hurt it has caused my family”.

But with this story, Four Corners has not only produced a program that has interest from the public, it is also in the public’s interest.

There are many questions to be answered from the ministers named in the story and also those who knew about the allegations and did nothing (or even worse, promoted them).

The real outcome of this program should not be a defamation case, but rather action from Morrison. Questions over ministerial conduct are important. This is certainly a matter of public interest.

Alexandra Wake, Program Manager, Journalism, RMIT University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Calls for an ABC-run social network to replace Facebook and Google are misguided. With what money?

Posted on October 25, 2020 by particularkev

Fiona R Martin, University of Sydney

If Facebook prevented Australian news from being shared on its platform, could the ABC start its own social media service to compensate? While this proposal from the Australia Institute is a worthy one, it’s an impossible ask in the current political climate.

The suggestion is one pillar of the think tank’s new Tech-xit report.

The report canvasses what the Australian government should do if Facebook and Google withdraw their news-related services from Australia, in reaction to the Australian Competition and Consumer Commission’s draft news media bargaining code.

Tech-xit rightly notes the ABC is capable of building social media that doesn’t harvest Australians’ personal data. However, it overlooks the costs and challenges of running a social media service — factors raised in debate over the new code.

Platforms react (badly) to the code

The ACCC’s code is a result of years of research into the effects of platform power on Australian media.

It requires Facebook and Google to negotiate with Australian news businesses about licensing payments for hosting news excerpts, providing access to news user data and information on pending news feed algorithm changes.

Predictably, the tech companies are not happy. They argue they make far less from news than the ACCC estimates, have greater costs and return more benefit to the media.

If the code becomes law, Facebook has threatened to stop Australian users from sharing local or international news. Google notified Australians its free services would become “at risk”, although it later said it would negotiate if the draft law was changed in its favour.

Facebook’s withdrawal, which the Tech-xit report sees as being likely if the law passes, would reduce Australians’ capacity to share vital news about their communities, activities and businesses.

ABC to the rescue?

Cue the ABC then, says Jordan Guiao, the report’s author. Guiao is the former head of social media for both the ABC and SBS, and now works at the institute’s Centre for Responsible Technology.

He argues that, if given the funding, ABC Online could reinvent itself to become a “national social platform connecting everyday Australians”. He says all the service would have to do is add

distinct user profiles, user publishing and content features, group connection features, chat, commenting and interactive discussion capabilities.

As a trusted information source, he proposes the ABC could enable “genuine exchange and influence on decision making” and “provide real value to local communities starved of civic engagement”.

Financial reality check

It’s a bold move to suggest the ABC could start yet another major network when it has just had to cut A$84 million from its budget and lose more than 200 staff.

The institute’s idea is very likely an effort to persuade the Morrison government it should redirect some of that funding back to Aunty, which has a history of digital innovation with ABC Online, iView, Q&A and the like.

However, the government has repeatedly denied it has cut funding to the national broadcaster. It hasn’t provided
catch-up emergency broadcasting funds since the ABC covered our worst ever fire season. This doesn’t bode well for a change of mind on future allocations.

The government also excluded the ABC and SBS as beneficiaries of the news media bargaining code negotiations.

The ABC doesn’t even have access to start-up venture capital the way most social media companies do. According to Crunchbase, Twitter and Reddit — the two most popular news-sharing platforms after Facebook — have raised roughly US$1.5 billion and US$550 million respectively in investment rounds, allowing them to constantly innovate in service delivery.

Operational challenges

In contrast, over the past decade, ABC Online has had to reduce many of the “social” services it once offered. This is largely due to the cost of moderating online communities and managing user participation.

Illustration of person removing a social media post. — Social media content moderation requires an abundance of time, money and human resources.
Shutterstock

First news comments sections were canned, and online communities such as the Four Corners forums and The Drum website were closed.

Last year, the ABC’s flagship site for regional and rural user-created stories, ABC Open, was also shut down.

Even if the government were to inject millions into an “ABC Social”, it’s unlikely the ABC could deal with the problems of finding and removing illegal content at scale.

It’s an issue that still defeats social media platforms and the ABC does not have machine learning expertise or funds for an army of outsourced moderators.

The move would also expose the ABC to accusations it was crowding out private innovation in the platform space.

A future without Facebook

It’s unclear whether Facebook will go ahead with its threat of preventing Australian users from sharing news on its platform, given the difficulties with working out exactly who an Australian user is.

For instance, the Australian public includes dual citizens, temporary residents, international students and business people, and expatriates.

If it does, why burden the ABC with the duty to recreate social media? Facebook’s withdrawal could be a boon for Twitter, Reddit and whatever may come next.

In the meantime, if we restored the ABC’s funding, it could develop more inventive ways to share local news online that can’t be threatened by Facebook and Google.

Fiona R Martin, Associate Professor in Convergent and Online Media, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

ABC has for too long been unwilling to push back against interference – at its journalists’ expense

Posted on August 30, 2020 by particularkev

Denis Muller, University of Melbourne

For those who watch the affairs of the ABC through the eyes of a critical friend, the removal of Emma Alberici, made public on August 21, is deeply disturbing.

It is the climax to a destructive series of events that began more than two years ago and once again draws attention to two serious weaknesses in the ABC’s management arrangements.

One is structural: the editor-in-chief is fatally compromised in that role by also being managing director. The managing director has corporate responsibilities that conflict with his or her editorial responsibilities every time the government tightens the financial screws.

That is not a reflection on David Anderson’s character or probity; it is the inevitable consequence of having the one person in both roles.

It also happens that Anderson – like his ill-fated predecessor Michelle Guthrie – is not a journalist. This makes it hard for him to give the kind of editorial leadership the ABC requires.

The second weakness is cultural. This long pre-dates Anderson’s term and is the product of sustained hostility from successive Coalition governments going back to the start of the Howard prime ministership in 1996.

The preceding 12 years of the Hawke-Keating governments had hardly been a golden age for the ABC, but it generally got year-on-year funding increases.

And in the tough-minded minister for communications, Michael Duffy, it had a defender in cabinet who was prepared to confront Hawke and other ministers infuriated by some of the ABC’s reporting.

As for the three years of the Rudd-Gillard-Rudd interlude, Labor was too busy tearing itself to pieces to bother with the ABC.

Former Prime Minister John Howard — Concerted government attacks on the ABC began under John Howard.
Mark Graham/AAP

Now, according to Anderson, after six years of cumulative budget cuts by the Abbott-Turnbull-Morrison administrations, the total effective reduction in ABC funding will amount to A$105.9 million per year by 2022.

And as for defenders in cabinet, the present communications minister, Paul Fletcher, is as mute as a swan.

Clearly all this has sapped morale.

In September 2018, a dossier compiled by Michelle Guthrie was leaked, revealing an email in which Justin Milne, as chair of the ABC, told her to get rid of Alberici, declaring the government “hate her”.

Over the preceding months, the government had repeatedly criticised stories Alberici had done in her role as chief economics correspondent.

Guthrie’s dossier came to light in The Age and Sydney Morning Herald at a time when the ABC had decided to sack her. In the ensuing “firestorm” – Milne’s word – he was consumed as well.

Milne had been concerned also with the work of political editor Andrew Probyn. He wanted Guthrie to “shoot” Probyn because the government hated him too and his continued presence was putting at risk half-a-billion dollars in funding for the ABC.

Assuming Milne and Guthrie were telling the truth, there could not be a clearer instance of how the government was using funding to undermine the ABC’s editorial independence.

The effects of this sustained intimidation are felt a long way down the ABC’s editorial food chain.

In May 2018, Barnaby Joyce accepted a reported $150,000 fee to appear with his lover on Channel Seven and talk about the affair that ended Joyce’s marriage and was a breach of the ministerial code of conduct. The ABC asked me to write a commentary on it.

I filed an article saying Joyce’s decision to take money for telling a story that concerned his public duties called into question his fitness for public office.

There was an awkward response from within the ABC indicating some disquiet further up the line. Would I mind not saying that about Joyce?

The rest of that exchange was off the record, but suffice to say I minded very much and withdrew the article. It later appeared unchanged in The Conversation and The Age.

That incident – small in itself but large in principle – revealed a malaise in editorial leadership at several levels.

Four months later came the revelations in Guthrie’s dossier about Milne’s attempts to have Probyn and Alberici sacked. It seems reasonable to infer word was filtering down from the top that if the ABC wanted to avoid yet more trouble from the government, it had better mind its manners.

Former ABC chair Justin Milne and former managing director Michelle Guthrie — Justin Milne told Michelle Guthrie to sack Emma Alberici and Andrew Probyn because the government hated them.
Joel Carrett/AAP

Alberici is now gone anyway, part of a wave of 200 redundancies announced by Anderson in June in response to the latest round of budget cuts.

It is clear from a leak of correspondence between her lawyer and the ABC the parting was anything but amicable, having finished up in the Fair Work Commission.

Her position as chief economics correspondent had been abolished and she was offered positions as a presenter. Alberici tweeted she wanted a reporting job.

So the ghosts of Justin Milne, Malcolm Turnbull and Michelle Guthrie continue to haunt the ABC.

The board that presided over the Milne-Guthrie implosion is still largely intact, despite having come out badly from a Senate inquiry into that debacle.

The committee of inquiry said:

This catalogue of events may give rise to the perception that the ABC Board had not been sufficiently active in protecting either the ABC’s independence from political interference or its own integrity.

And the structural and cultural weaknesses laid bare by the saga remain.

The strategy the Howard government developed for dealing with the ABC – funding cuts, pointless inquiries and cultural warfare – is being followed to the letter by the present government.

2017 was a vintage year, and sums up the problems:

Abbott’s cuts from three years earlier were working their way through the system
Pauline Hanson, smarting from a Four Corners investigation, secured a promise from the government to hold an inquiry into whether the ABC and SBS operated on a “level playing field” (Answer: yes they did)

One of history’s many lessons is that appeasement does not work. Editorial executives have one over-riding responsibility: to provide a safe environment in which their staff can do independent journalism, regardless of corporate, political or economic interests.

Part of that is having the professional experience to understand what is involved, which includes absorbing the bullying that comes from powerful people and, where necessary, hitting back.

There has been no sign the ABC’s journalists have been getting that kind of protection, least of all from the board.

Instead, they are at the mercy of a vindictive government, urged on by its mates in News Corporation, which has a vested interest in weakening the ABC and shamelessly campaigns for exactly that.

The original version of this article contained a reference to an email concerning the coverage of marriage equality on the ABC. The author has subsequently learnt more about the origins and context of that email and acknowledges that the context as presented in the original article was wrong. That passage has been removed.

Denis Muller, Senior Research Fellow, Centre for Advancing Journalism, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Latest $84 million cuts rip the heart out of the ABC, and our democracy

Posted on June 27, 2020 by particularkev

Alexandra Wake, RMIT University and Michael Ward, University of Sydney

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
The World Today and ABC PM radio current affairs programming halved
the closure or reduction of international news bureaus
cuts since 2014 to Radio National (for example, Sunday Nights)
cuts to international broadcasting/media services such as the Australia Network, which was cancelled in 2013
the end of short wave radio services to the Northern Territory
a reduction in live concerts on Classic FM
a contraction of Australian drama
cut costs for Australian children’s programming
reductions in women’s and local sport
an end to the coverage of international events such as the Olympics cancelled
an end to non-news and current affairs television outside of Sydney and Melbourne
the closure of ABC Open
100 websites shut down.

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.

Alexandra Wake, Program Manager, Journalism, RMIT University and Michael Ward, PhD candidate, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Media chiefs unite on press freedom, but will it result in any action?

Posted on July 2, 2019 by particularkev

News Corp Executive Chariman Michael Miller (left), Nine Chief Executive Officer Hugh Marks (centre) and ABC Managing Director David Anderson (right) stressed unity in their fight for press freedom.
Rohan Thomson/AAP

Colleen Murrell, Swinburne University of Technology

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.

Like Anderson, Marks also emphasised the important investigative public interest journalism carried out by Fairfax and Nine journalists in recent years, including work by Laurie Oakes, Adele Ferguson, Joanne McCarthy and Chris O’Keefe.

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.

–

Colleen Murrell, Associate Professor, Journalism, Swinburne University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Explainer: what are the media companies’ challenges to the AFP raids about?

Posted on June 28, 2019 by particularkev

Rebecca Ananian-Welsh, The University of Queensland

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.

In recent High Court decisions, safe access zones around abortion clinics were upheld as justified restrictions on political communication, and in NSW, caps on third party political donations were struck down as unjustified restrictions.

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.

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Government senator urges sale of ABC city properties

Posted on June 22, 2019 by particularkev

Senator James McGrath in the Senate chamber at Parliament House in Canberra.
Mick Tsikas

Michelle Grattan, University of Canberra

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.”

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Why the raids on Australian media present a clear threat to democracy

Posted on June 6, 2019 by particularkev

On Wednesday, the AFP raided the ABCs Sydney headquarters in relation to the 2017 “Afghan files” report.
AAP/David Gray

Rebecca Ananian-Welsh, The University of Queensland

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.

And then on Wednesday, the AFP raided the ABC’s Sydney headquarters. This dramatic development was in connection with the 2017 “Afghan files” report based on “hundreds of pages of secret defence force documents leaked to the ABC”. These documents revealed disturbing allegations of misconduct by Australian special forces.

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.

But to those familiar with the ever-expanding field of Australian national security law, these developments were unlikely to surprise. In particular, enhanced data surveillance powers and a new suite of secrecy offences introduced in late 2018 had sparked widespread concern over the future of public interest journalism in Australia.

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.

Source confidentiality

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.

But in 2018, the government went some way to closing down this option when it introduced the complex and highly controversial Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.

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.

Secrecy offences

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.

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Random Thoughts

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Category Archives: ABC

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Source confidentiality

Secrecy offences

Protecting media freedom

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What defences can media organisations use?

Reforming defamation

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