Who’d be a whistleblower?

We need to strengthen legal protections for Australian journalists

For years, Australia’s politicians bickered about Julian Assange, but in the months before he came home, they reached a remarkable consensus.

“This case has dragged on far too long,” Prime Minister Anthony Albanese told parliament. “There is nothing to be gained by his continued incarceration and we want him brought home to Australia.”

In May, the opposition leader Peter Dutton – once a vociferous Assange critic – told ABC radio, “the matters, I think, have to be dealt with and if the Prime Minister’s charting a course through to an outcome on that, that’s a good thing.”

But Australia is in no position to be sniffy about the way the United States has treated Assange. Whether whistleblower, journalist or free speech radical, it’s likely that under Australian law, he would have had an even tougher run.

For those who believe the right to speak and to write freely is essential to democracy, the gold standard is the First Amendment to the US Constitution. In simple, elegant language, it declares that, “Congress shall make no law … abridging the freedom of speech, or of the press.”

Before reaching his plea deal, Assange had planned to use the First Amendment as his fundamental defence, because it offers a clear and unambiguous right to publish evidence of abuses power by the government.

Perhaps most famously, in 1971 the First Amendment protected the Washington Post and New York Times in publishing the Pentagon Papers. The Papers were a secret Defence Department history of the US involvement in the Vietnam War. A Harvard Law Bulletin article said, “(the) case legitimized the media’s status as what historian Stanley I. Kutler called ‘the people’s paladin against official wrongdoing.’”

And Australia? We have nothing. Zip. Nada. We are the only liberal democracy without legal protection for those rights which are universally recognised as essential components. Assange would have had nothing to rely on beyond a hopelessly limp “implied right of political communication” that the High Court inferred in our constitution. (There is a ‘public interest’ test in some statutes, but as whistleblower David McBride has learned to his cost, that is relatively meaningless.)

As a result, we imprison our whistleblowers, police raid our journalists, and good reporting gets chilled. And while we don’t lock them up in the way that places like Turkey or China do, the fact that reporters aren’t rotting in prison is a consequence of political expedience rather than clear legal protection.

In 2019, when Federal Police went after journalists from News Corp and the ABC over stories that involved leaked classified information, the then-Attorney General Christian Porter issued a decree, declaring that in future, prosecutors should refer to him before taking journalists to court (something the current AG, Mark Dreyfus, has decided to continue).

At first glance, that’s encouraging because it adds an extra layer of oversight before journalists are prosecuted, but it also effectively leaves the decision in the hands of a politician.

Instead, the government should fix the problem once and for all. Given the long, painful history of failed attempts to update the constitution, our own First Amendment equivalent is not going to fly. But there is another solution.

My organisation, the Alliance for Journalists’ Freedom, has drafted a Media Freedom Act, that would write the principles into law. It would compel parliament to always consider media freedom in new legislation, and the courts to interpret existing laws in ways that are consistent with media freedom.

In other words, it would inject a positive obligation to consider the powerful public interest in publishing good, ethical journalism, in ways that just don’t exist in our laws at present. That right to produce journalism would not always trump national security interests, but there must always the legal obligation to take it into account.

That might not fix all our problems with the press, but it would make a very big difference.

Peter Greste is a professor of journalism at Macquarie University, author, journalist and speaker.

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