When Alan Jones encouraged Australian Prime Minister Scott Morrison to “shove a sock down” the throat of New Zealand Prime Minister Jacinda Ardern, it was not the first time he launched a broadside and lost advertisers.
This time, 52 advertisers have so far withdrawn from Jones’ 2GB radio programme, buoyed by social media campaigns by activist groups publicising a list of boycotting advertisers as well as naming and shaming those who remain, such as Virgin Australia.
When asked about Jones’ comment on a television morning news programme, Ardern said she didn’t engage and does not intend to respond because she doesn’t “have an opinion on every single person who says something about me.”
In today’s interconnected and increasingly more accessible world, brands are recognising the potential damage of not responding to an incident like this. Brands are actually responding strategically by capitalising on the press attention, visibly and loudly disassociating themselves from negative events or scandals.
It is not primarily about the money. Between at least seven of the boycotting brands, the money they put towards Jones’ 2GB radio show accounts for less than 1% of their media budget. But the long-term reputational and financial risk avoided by dissociating from Alan Jones is significant.
A toxic affiliation, even when that accounts for only a small piece of the marketing budget and media exposure pie, can have disastrous effects on a brand.
When brands partner
Like Jacinda Ardern, Alan Jones is a brand. People are aware of who he is and his name evokes certain associations (rightwing, shock jock). When companies choose to buy advertising space within his talk show, they are engaging in a brand partnership.
Once partnered, brands gain exposure to each other’s audiences and trigger the transfer of associations between brands (for example, George Clooney’s global status can be transferred to an instant coffee brand). But when one brand attracts bad publicity, it is not the only one that suffers damage to their image. All affiliated brands are at risk.
Tiger Woods lost US$22 million in endorsement and sponsorship contracts after his 2009 sex scandal. Accenture, AT&T and Gatorade dropped Tiger Woods, and the scandal cost shareholders of brands such as Nike and Gatorade US$12 billion. Similarly, Sandpapergate saw some major sponsors cutting ties with the Australian cricket team in 2018 for fear of the negative associations with cheating that accompanied the ball tampering incident.
Partnerships mean that the brands involved are not completely in charge of their narrative. People encounter brands in various ways and each encounter shapes perceptions, despite not being curated by the brand.
While boycotting advertisers such as ME Bank, Chemist Warehouse, Koala and Volkswagen knew that audiences would be exposed to their brand within Alan Jones’ radio show, they can’t control what else is happening at that time and what they are being linked to by virtue of association.
Turning a negative into a double positive
Advertisers have not only mitigated the spillover of misogynistic and violent connotations to their images, they’ve used this boycott as an opportunity to drive up brand sentiment. Walking away from Alan Jones not only firewalls them from his brand of outrage but signals their brand as principled, virtuous and willing to take a stand.
The incident has also highlighted the fact that these companies actually sponsored the show in the first place – a show which was known for its controversial viewpoints before this particular incident. Paradoxically, righting this wrong by boycotting could enhance satisfaction with these companies more than if they had never advertised with the programme in the first place.
This is particularly meaningful in a climate where consumers want to buy from brands that share their own values and act on social and political issues. Yet consumers discern between brands that back up their messages through practice. They’re looking for brands to “walk the talk”.
Credibility based on attractiveness, expertise and trustworthiness is key.
A recognisable brand is one of the most lucrative assets on a company’s books. The Apple brand, for example, is worth US$214 billion. Partnering with an entity with characteristics that boost a brand’s credibility will also increase brand equity, which captures the value of the brand name alone.
Brand equity starts with people’s knowledge of the brand – what comes to mind when they hear the name. By cutting ties with 2GB, the boycotting companies have made sure it’s not Alan Jones, sock-shoving and misogyny.
Alan Jones’s political power is to a large extent based on a self-fulfilling prophecy: politicians believe he can shift votes, so they pay homage to him, which adds to the impression that he can shift votes.
This perception of power, in turn, gives him actual power.
Fifteen years of research and I haven’t found Alan Jones to be that much more influential with voters than ABC Radio or The SMH. He is only powerful because politicians think he is.
So if evidence that he actually shifts votes is hard to find, how did this phenomenon develop?
Developments in media-political relations over the 34 years that Jones has been broadcasting give some pointers.
He was a pioneer in what has become known as the outrage industry. He rants and raves in extraordinarily fluent broadsides, captivating in their aural power and – to a listener of a certain type – intoxicatingly persuasive.
This listener is typically in the autumn of life and living in the western suburbs of Sydney, where a tough life has bred cynicism about politicians, bureaucrats and big companies.
Early on, Jones tapped into this sentiment, becoming the champion of what he called “Struggle Street”, although he himself lived in an apartment overlooking Circular Quay and the Opera House.
His ratings rose and so did his perceived capacity to win over the hearts and minds of Struggle Street.
By the late 1990s, companies that were on the nose with the public, like Telstra and some of the banks, began to see that he might be able to change public attitudes towards them, if his commentary about them could be made to look like his honestly held opinion.
In fact these commentaries were paid for, but this was not disclosed to the audience, and so in 1999 Jones, along with several other high-profile talkback hosts, were caught up in what became known as the cash-for-comment scandal.
Despite adverse findings against him by the regulator at the time, the Australian Broadcasting Authority, belief in his power to sway audiences remained undiminished.
A few weeks after these findings were announced, he hosted an event for then Liberal Prime Minister John Howard, and dined with the NSW Labor Premier, Bob Carr, to discuss matters of government policy.
The following week, Carr sent his Police Minister-designate, Michael Costa, to discuss policing policy with Jones.
At Radio 2UE, where Jones was then working, the revenue generated not just by conventional advertising but by the cash-for-comment arrangements, had made Jones’s position there impregnable.
And when he switched to 2GB in 2002, he became an instant rainmaker for his new station, and equally impregnable there, free of management constraints and therefore in a position to play favourites and create enmities with whomever he chose.
His core audience – those on “Struggle Street – were then given special attention by the prime minister, and came to be known as “Howard’s battlers”.
For the entirety of his prime ministership, from 1996 to 2007, Howard made a point of cultivating Jones, and became a favourite. A former colleague of Jones, Mike Carlton, has been quoted as saying that there was allegedly an operative in Howard’s office dedicated to working on what were called “Jones issues”.
Whether this was true or not, Howard became a regular guest on the Jones program, saying it gave him a chance to speak directly to the Australian people rather than having his message filtered by sceptical journalists.
A prime ministerial imprimatur of this kind is calculated to increase perceptions of political power.
Then, just as Howard was departing office in 2007, the phenomenon of social media was gaining momentum in Australia.
It turbo-charged the outrage industry, and Jones was skilled up to take advantage of this new libertarian free-for-all.
He had already been found in 2005 to have breached the radio industry code of practice by inciting violence against people of Middle Eastern ethnicity in a series of incendiary broadcasts leading up to the race riots at Cronulla that year.
But as usual, the broadcasting regulator, now called the Australian Media and Communications Authority, contented itself with entering into a “dialogue” with 2GB.
Then, in 2012, he gave encouragement to the idea that Julia Gillard should be put in a chaff bag and dumped at sea. Once more there were no consequences.
And now, in 2019, he is encouraging Scott Morrison – already known as the 2GB Prime Minister – to shove a sock down the throat of the New Zealand Prime Minister Jacinda Ardern.
Three strikes, but still not out.
Finally, however, there is a sign the 2GB management might have begun to ask themselves whether Jones has outlived his profitability.
They have warned him that one more rant like that and they will terminate his contract.
It cannot just be that a swag of big advertisers have abandoned the Jones program. This has happened in the past when he has committed some atrocity, but they drift back after the hue and cry has died down.
However, last year Jones cost the station A$3.75 million in defamation damages, plus millions more in legal costs after he wrongly and persistently accused the owners of a quarry in the Queensland town of Grantham of causing the deaths of local people who died in the 2011 floods.
At the time of writing, Macquarie Media, which owns 2GB, is being purchased by Nine Entertainment, which already owns the Nine TV network and the big mastheads of the old Fairfax company, The Age, The Sydney Morning Herald and the Australian Financial Review.
It may be that this takeover will add a reputational dimension to the assessment of Jones’s value to shareholders.
If Jones does finally come to grief, it will be because of considerations like these, not because of any damage he does to the social fabric.
The government has given a new direction to the Australian Federal Police to prevent repeats of the recent raids on the media when leaks are being investigated.
The number of investigations will also be cut back, because departments referring leaks of official material to the police will have to outline the harm the disclosure poses to national security.
The changes, announced by Home Affairs Minister Peter Dutton late on Friday, follow a backlash against the government after the Australian Federal Police raided News Corp journalist Annika Smethurst and the ABC over separate leaks.
The direction applies to both current and prospective investigations, so would likely mean the police will drop off their pursuit of the media in these instances, although the ultimate decision rests with the AFP.
Smethurst’s story revealed confidential correspondence about a proposed change in the remit of the Australian Signals Directorate. The ABC reported confidential documents relating to the behaviour of Australian special forces in Afghanistan.
After the raids the AFP refused to rule out prosecuting the journalists. The media organisations launched court action challenging the validity and use of the search warrants.
Dutton said he had issued a “ministerial direction” to the AFP Commissioner.
This set out the government’s “expectations” for the police when a journalist or media organisation had a leak from a serving or former Commonwealth official.
Dutton said the directive did not constrain investigation by the AFP of an unauthorised disclosure. “A key function of the AFP is the enforcement of the criminal law, without exception,” he said.
But he said he expected the AFP “to take into account the importance of a free and open press in Australia’s democratic society and to consider broader public interest implications before undertaking investigative action involving a professional journalist or news media organisation” in relation to a leak.
“Where consistent with operational imperatives, I expect the AFP to exhaust alternative investigative actions prior to considering whether involving a professional journalist or news media organisation is necessary.”
Dutton said he expected the police to continue to seek voluntary assistance from the media.
He has also told the AFP “to strengthen its guidance and processes about the types and level of information required” from departments and agencies when referring leaks.
Departments “will need to provide a harm statement indicating the extent to which the disclosure is expected to significantly compromise Australia’s national security”.
The upshot is that rather than departments routinely referring leaks to the police, disclosures that do not carry national security implications will not be sent.
Sources pointed out this would not stop a department using its own internal processes to find out who had leaked and taking disciplinary action against them.
The opposition declared the changes just “window dressing”.
Shadow minister for Home Affairs Kristina Keneally said Dutton had announced what he “expects” of the police when the media and the public had demanded guarantees from the government.
She pointed out the announcement had come just days before the Parliamentary Joint Committee on Intelligence and Security held public hearings into press freedoms.
“This is a cowardly act,” Keneally said. “It’s taken Mr Dutton too long to speak out and there are still many unanswered questions”, she said.
“Can the Morrison government confirm they will not charge or prosecute any Australian journalist – such as those at the ABC – for doing their job and reporting in the public interest?”
With concerns growing worldwide about the economic power of digital technology giants such as Google and Facebook, there was plenty of interest internationally in Australia’s Digital Platforms Inquiry.
The Australian Competition and Consumer Commission (ACCC) inquiry was seen as undertaking a forensic account of market dominance by digital platforms, and the implications for Australian media and the rights of citizens around privacy and data protection.
But the major limitation facing the ACCC, and the Australian government, in developing new regulations for digital platforms is jurisdictional authority – given these companies are headquartered in the United States.
More ‘platform neutral’ approach
Among the ACCC’s 23 recommendations is a proposal to reform media regulations to move from the current platform-specific approaches (different rules for television, radio, and print media) towards a “platform-neutral” approach.
This will ensure comparable functions are effectively and consistently regulated:
Digitalisation and the increase in online sources of news and media content highlight inconsistencies in the current sector-specific approach to media regulation in Australia […]
Digital platforms increasingly perform similar functions to media businesses, such as selecting and curating content, evaluating content, and ranking and arranging content online. Despite this, virtually no media regulation applies to digital platforms.
The ACCC’s recommendations to harmonise regulations across different types of media draw on major Australian public enquiries from the early 2010s, such as the Convergence Review and the Australian Law Reform Commission’s review of the national media classification system. These reports identified the inappropriateness of “silo-ised” media laws and regulations in an age of digital convergence.
The ACCC also questions the continued appropriateness of the distinction between platforms and publishers in an age where the largest digital platforms are not simply the carriers of messages circulated among their users.
The report observes that such platforms are increasingly at the centre of digital content distribution. Online consumers increasingly access social news through platforms such as Facebook and Google, as well as video content through YouTube.
The advertising dollar
While the ACCC inquiry focused on the impact of digital platforms on news, we can see how they have transformed the media landscape more generally, and where issues of the wider public good arise.
Their dominance over advertising has undercut traditional media business models. Online now accounts for about 50% of total advertising spend, and the ACCC estimates that 71 cents of every dollar spent on digital advertising in Australia goes to Google or Facebook.
All media are now facing the implications of a more general migration to online advertising, as platforms can better micro-target consumers rather than relying on the broad brush approach of mass media advertising.
The larger issue facing potential competitors to the digital giants is the accumulation of user data. This includes the lack of transparency around algorithmic sorting of such data, and the capacity to use machine learning to apply powerful predictive analytics to “big data”.
In line with recentcritiques of platform capitalism, the ACCC is concerned about the lack of information consumers have about what data the platforms hold and how it’s being used.
It’s also concerned the “winner-takes-most” nature of digital markets creates a long term structural crisis for media businesses, with particularly severe implications for public interest journalism.
Digital platform companies do not sit easily within a recognisable industry sector as they branch across information technology, content media, and advertising.
They’re also not alike. While all rely on the capacity to generate and make use of consumer data, their business models differ significantly.
The ACCC chose to focus only on Google and Facebook, but they are quite different entities.
Google dominates search advertising and is largely a content aggregator, whereas Facebook for the most part provides display advertising that accompanies user-generated social media. This presents its own challenges in crafting a regulatory response to the rise of these digital platform giants.
A threshold issue is whether digital platforms should be understood to be media businesses, or businesses in a more generic sense.
Communications policy in the 1990s and 2000s commonly differentiated digital platforms as carriers. This indemnified them from laws and regulations relating to content that users uploaded onto their sites.
But this carriage/content distinction has always coexisted with active measures on the part of the platform companies to manage content that is hosted on their sites. Controversies around content moderation, and the legal and ethical obligations of platform providers, have accelerated greatly in recent years.
To the degree that companies such as Google and Facebook increasingly operate as media businesses, this would bring aspects of their activities within the regulatory purview of the Australian Communication and Media Authority (ACMA).
The ACCC recommended ACMA should be responsible for brokering a code of conduct governing commercial relationships between the digital platforms and news providers.
This would give it powers related to copyright enforcement, allow it to monitor how platforms are acting to guarantee the trustworthiness and reliability of news content, and minimise the circulation of “fake news” on their sites.
Overseas, but over here
Companies such as Google and Facebook are global companies, headquartered in the US, for whom Australia is a significant but relatively small market.
The capacity to address competition and market dominance issues is limited by the fact real action could only meaningfully occur in their home market of the US.
Australian regulators are going to need to work closely with their counterparts in other countries and regions: the US and the European Union are the two most significant in this regard.
Living with two preteens, I get almost daily requests to approve new apps. My standard response is to ask my kids to describe the app, why they want it, and how it makes money.
The last question is important, and not just to avoid to avoid in-app charges. Understanding the forces that drive the online economy is crucial for consumers, and increasingly citizens. All the new tools we access come at a cost even when they seem to be free.
How technology companies make money is a good question for digital media users of any age. It lies at the heart of the Australian Competition and Consumer Commission’s inquiry into the power and profits of Google and Facebook, the world’s two most ubiquitous digital platforms.
The competition watchdog’s job was to look at how online search engines, social media and digital content aggregators wield power in media and advertising, how that undermines the viability of traditional journalism (print in particular), and what can be done about it.
Its final report makes a swag of recommendations to limit these platforms’ market dominance and use of personal data.
One example is requiring devices to offer consumers a choice of search engine and default browsers. Google now requires Android phones to pre-install Google apps. This feeds a “default bias” that contributes to it being used for 95% of Australian searches.
Another is reforming Australia’s privacy laws to address the digital environment. Platforms’ “take it or leave it” policies now give consumers little choice on having their data harvested.
But on the area of concern central to the inquiry’s establishment –
the decline in journalism – the recommendations are relatively minor:
a code of conduct to treat news media businesses “fairly, reasonably and transparently”
“stable and adequate” government funding for the ABC and SBS
government grants (A$50 million a year) to support original local journalism
tax incentives to encourage philanthropic support for journalism.
The reality is that there is little governments can do to reverse the technological disruption of the journalism business.
The internet has made stark that news organisations aren’t primarily in the journalism business. The stories they produce play an incomparable social role, but the business model is to deliver an audience to advertisers.
Social media and search give advertisers better tools to target messages to more precise groups of potential consumers. It is a phenomenally better mousetrap.
Traditional advertising is expensive and inefficient. An advertiser pays to reach a broad audience, most with no interest in what is being advertised.
Search allows advertisers to pay to reach people precisely when they are looking for something. Google knows what you are interested in, and serves up advertising accordingly. In the last quarter alone advertising in its properties (Search, Maps, Gmail, YouTube, Play Store and Shopping) made US$27.3 billion in revenue.
Social media platforms have a different model, but one no less damaging to the old newspaper business model. It’s a bit more like traditional mass media advertising, selling the attention of users to advertisers, but in a far more targeted way.
To the extent Facebook, Instagram, Twitter and so on capture your attention, and effectively monetise content made by others through sharing, they also undercut traditional news businesses.
Follow the money
No regulation can fix this. As the competition watchdog’s report notes, Australian law does not prohibit a company from having substantial market power. Nor does it prohibit a company “from ‘out-competing’ its rivals by using superior skills and efficiency”.
No one – not even the tech companies – is necessarily to blame for the technological innovation that has disrupted traditional news organisations.
To see that, as with my kids understanding how their apps make money, it’s just a case of following the money.
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.”
A few days ago, Waleed Aly asked a not-so-rhetorical question in The Sydney Morning Herald. He wondered how many Australians were worried about the fact that the Australian Federal Police had spent a good portion of this week raiding the offices and homes of journalists who’ve published stories clearly in the public interest.
His conclusion? Not many. He went on to argue that it is because we have developed a culture of accepting excessive state power, with no real thought about the consequences for civil liberties or the functioning of our democracy.
Sadly, I would have to agree with Aly, but as with so many surveys, the answer you get depends on the question you ask.
What if we asked, “Hands up who feels comfortable with relying on the Facebook posts and Twitter feeds of our politicians and departmental spokespeople for information about what our government is up to? Who thinks that is a good way to run a democracy?” Then, I bet you’d get a very different answer.
I agree that Australian media are hardly trusted by the public, but I am also convinced that most Australians recognise the need for some kind of independent watchdog keeping track of politicians and the government on our behalf. It might be imperfect and messy, but a free press has performed that role well enough to keep us broadly on track for much of our history.
Earlier this week, my colleague and fellow University of Queensland researcher Rebecca Ananian-Welsh laid out the intricate web of national security laws passed in recent years that collectively serve to straight-jacket journalists and threaten legitimate whistle-blowing.
In a number of research projects, we have been looking at both these laws and their impact on reporting, and while we still have a long way to go, the early results suggest something deeply troubling.
While they may have helped shore up national security, the laws have also led to a net loss of transparency and accountability. It has become harder for journalists to reach and protect sources and keep track of wrong-doing by government officials. It has also become harder for them to safely publish in the public interest without risking long years in prison or cripplingly expensive and traumatic court cases.
My organisation, the Alliance for Journalists Freedom, has published a white paper that offers a better way of balancing those two crucial elements of our democracy – national security and press freedom.
The most important of its seven recommendations is a Media Freedom Act. Australia has no legal or constitutional protection for press freedom. It isn’t even formally recognised in law; the High Court has merely inferred that we have a right to “political communication.”
That needs to change. The AJF is proposing a law that would write press freedom into the DNA of our legal system. It would both prevent our legislators from unnecessarily restricting journalists from doing their jobs and give judges a benchmark they can use whenever they are adjudicating cases that deal with media freedom issues.
That alone isn’t enough though. The second recommendation in the white paper calls for changes to the national security laws themselves.
Currently, many of the current laws that Ananian-Welsh laid out in her article include a “public interest” defence for journalists. But as we have seen in this week’s raids, that does nothing to stop the AFP from trawling through journalists’ documents for sources and forcing everyone into court.
Instead, there should be an exemption for journalists and their sources when reporting on matters of public interest.
That isn’t to suggest that journalists should be immune, though. Rather, the onus should be shifted to the authorities to show why the public interest defence should not apply. It is also important that the exemption include whistleblowers.
Beyond national security, there are a host of other laws that have contributed to a wide culture of secrecy at odds with the principles of open government.
Payouts under defamation laws now routinely run to millions, potentially destroying news organisations and chilling further investigative work. Shield laws that allow journalists to protect their sources in court are also inconsistent across states and need to be strengthened.
Suppression orders that judges use to smother reporting of certain court cases are being applied with alarming frequency and urgently need review. And whistleblower legislation needs to be strengthened to encourage and protect anybody speaking out about wrongdoing in government or elsewhere.
While the raids of the past week have been shocking, they have forced us all to think again about the role of the media in a democracy. If it leads to better legislation that both protects national security and media freedom, then some good might have come out of it after all.
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.