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 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.
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.
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.
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 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.
The link below is to an article that reports on the Osama Bin Laden raid report and the view that Pakistan is a failed state.
The link below is to an article reporting on persecution news from Nigeria, where up to 55 people have been killed after a Boko Haram raid in Bama.
The link below is to an article reporting on a police raid of a Russian church.
For more visit:
The following article reports on the raiding of a pastor’s house in Belarus.
The following article reports on a raid carried out against a Baptist Church in Burma/Myanmar.
Missionary Couple Slain in Mexico; Peace Pact in Puebla
The following article reports on the death of two Baptist missionaries in Mexico and on religious conflict between Roman Catholics and Protestants.
Islamic Extremists Behead Another Convert in Somalia
The following article reports on the beheading of a Christian by Islamic extremist group Al Shabaab.
Iranian Authorities Raid House Church in Shiraz
The following article reports on the persecution of Iranian Christians by Iranian authorities.
The articles linked to above are by Compass Direct News and relate to persecution of Christians around the world. Please keep in mind that the definition of ‘Christian’ used by Compass Direct News is inclusive of some that would not be included in a definition of Christian that I would use or would be used by other Reformed Christians. The articles do however present an indication of persecution being faced by Christians around the world.
‘Religious police’ raid apartment; no official charges.
LOS ANGELES, March 28 (CDN) — Friends and family of two Indian Christians arrested after a prayer meeting in Saudi Arabia in January have tried in vain to secure their release.
The two Christians were incarcerated for attending the prayer meeting with other Indian nationals and accused of converting Muslims to Christianity, though the government has not produced formal charges, sources said.
Yohan Nese, 31 and Vasantha Sekhar Vara, 28, were arrested on Jan. 21 when mutaween (religious police) raided an apartment where the two had lingered after attending the prayer meeting. Religious police interrogated and beat them to the point that they suffered injuries, according to sources. During this time, religious police who were cursing at them allegedly tore up and trampled on Bibles and Christian material they had confiscated, said a source who spoke to the men.
Authorities asked them how many Christian groups and pastors there are in Saudi Arabia and Riyadh and asked their nationalities. The religious police also put pressure on the two to convert to Islam, according to sources.
The next morning, Jan. 22, authorities took the two Christians to the Religious Court in Riyadh. The court sentenced them to 45 days in prison. At 2 p.m., police filed a case at the local civil police station, according to a source who requested anonymity.
To date the Christian Indians have been in prison for 67 days. Their family and friends say they still have not been able to obtain a document with official charges but know from the prisoners that the charges are religious in nature, according to the source. At the time of their detention, the Christians were not engaging in religious activities.
On Jan. 22, 15 mutaween in civilian clothes came back to the apartment they had raided the previous day, destroyed valuable items and wrote Islamic slogans on the walls with spray paint, the source said.
Nese and Vara’s situation in prison is “horrible,” said the source. The two men are cramped in a prison cell with only enough room to stand.
“There is no place to even sit,” said the source. “Only two hours a day they are sleeping in shifts. When brother Yohan is sleeping, brother Sekhar needs to stand, and when brother Sekhar wants to sleep, brother Yohan needs to stand. They have been doing this for more than a month. I don’t know how many more days they have to continue this.”
Since the arrest, other Christians have been too frightened to meet for prayer.
One week after his arrest, Vara was able to use a phone to call his family and pastor in India. His wife, Sandhya Vara, who is expecting their first child in three months, said she has not heard from him since.
“There were no Muslims in their prayer meeting, but they are accusing them of converting Muslims into Christians,” she told Compass by phone. “We got married eight months ago, but he’s very far from me now and he’s in very much trouble, and I’m six months pregnant.”
She and his pastor in India have communicated numerous times with the Indian embassy but have received no response.
“I have been complaining to the Indian embassy,” she said. “They cannot call me or give me any information. There is no help. So many times I informed them and they cannot give any reply and cannot take any action.”
Vara had worked in Saudi Arabia for more than seven years. Last summer he came to India and got married, returning on Jan. 9 to his post in Riyadh, where he worked as a supervisor for a catering company.
“Vasantha is from my church,” said his pastor in India, Ajay Kumar Jeldi. “He is very God-fearing, good, prayerful, supporting the pastor and working for the youth.”
The morning of his arrest, Vara called Pastor Jeldi and told him he planned to go to the evening prayer meeting in Riyadh. After the meeting, Vara, Nese and four other unidentified Christians lingered at the flat where the gathering had taken place. At around 7:30 p.m. two mutaween in plainclothes and one policeman in uniform raided the apartment.
On the phone with his pastor back in India, Vara said he was in prison for religious reasons and that he had been pressured to convert to Islam, but that he had refused.
“If I have to die for my God, I will die for him here,” he told Pastor Jeldi. “God will help me.”
The pastor said that in his sole conversation with him a week after his detention, Vara requested prayers for his release.
Typically in Saudi Arabia, a foreign worker’s documents remain with the employers who sponsor them in order for them to work in the country. Saudi employers are typically the only ones who can secure their employees’ release on bail.
“Only their sponsors can bring them out,” Pastor Jeldi said. “He has the right to bring him out, and no one else has the right to go and pay the bail or anything. Only the sponsor can have that responsibility.”
Since his arrest, Vara’s employer has handed his passport to local authorities and told them he is no longer responsible for him, according to the anonymous source.
“He doesn’t want him to work in his company anymore,” said the source.
The Saudi “religious police” or Commission to Promote Virtue and Prevent Vice (CPVPV) is a government entity that includes 5,000 field officers and 10,000 employees, along with hundreds of “unofficial” volunteers who take it upon themselves to carry out the CPVPV’s mandate, according to the U.S. Commission on International Religious Freedom.
“Despite the fact that the CPVPV is not allowed to engage in surveillance, detain individuals for more than 24 hours, arrest individuals without police accompaniment, or carry out any kind of punishment, its members have been accused in recent years of killing, beating, whipping, detaining, and otherwise harassing individuals,” the commission stated.
In the raid, authorities confiscated anything of value in the apartment, including two musical keyboards, a guitar, two sound boxes, a sound mixer, four microphones, music stands, power extension boxes, a laptop, mobile phone chargers and a whiteboard. They also confiscated 25 Bibles and other Christian materials, the source said.
The other Indian Christians at the apartment escaped.
The anonymous source said he has informed the Embassy of India in Riyadh of their arrest numerous times.
“I have lost hope in them,” he said, “because the only thing they are always saying is that this is a religious case, so we can’t do anything.”
Pastor Jeldi said he thought someone must have complained about the group of Christian Indians who were meeting regularly, causing authorities to act.
Nearly 7 million foreigners live and work in Saudi Arabia, of which an estimated 1.5 million are Indian nationals.
Human Rights Watch has reported that Saudi Arabia systematically discriminates against migrant workers and has called for the government to “abolish the sponsorship system for migrant workers, in particular the requirement for employer consent to transfer employment and to obtain an exit visa.”
According to the U.S. Department of State’s 2010 Report on International Religious Freedom, with rare exception, expatriate workers fear government interference with their private worship. The reasons for this interference can range from the worship service being too loud, having too many people in attendance or that it occurs too often in the same place, according to the report.
Riyadh was the stage for another raid and mass arrest of Christians in early October 2010. Arab News and other press reported the arrest of 12 Filipino Christians and a French Catholic priest celebrating mass in a private apartment. There were 150 Filipinos in attendance. The employers of the 12 Christian foreign workers secured their release, and the Philippine embassy negotiated their repatriation. The Catholic priest was also released within days.
“Saudi officials do not accept that for members of some religious groups, the practice of religion requires more than an individual or a small group worshipping in private, but includes the need for religious leaders to conduct services in community with others,” stated the State Department’s religious freedom report. “Foreign religious leaders continue to be prohibited from seeking and obtaining visas to enter Saudi Arabia and minister to local religious communities.”
Report from Compass Direct News