“The Chilling Effect” – the institutionalised censorship of the Australian press

Image: Pressfreedom.org.au

This essay was written as an assessment for RMIT Journalism Law and Ethics.

In May this year, Australia’s two major political parties had the chance to enshrine freedom of the press into law.

Neither chose to.

The Senate press freedom inquiry was opened on July 23, 2019. After five extended delays and forty-eight submissions from national and international experts on the risks facing Australian journalistic freedom, the inquiry committee passed down its recommendations.

They called for subtle adjustments to existing laws and more inquiries.

The majority members, representatives of the coalition government, submitted a dissent, quietly rejecting the idea of codifying freedom of the press into law.

The opposition made no comment at all.

The inquiry found itself suddenly more of the same in a steady process by the Commonwealth to censor the Australian press through legislation, agency intimidation and stalled reforms.

Australia has had ample opportunity to codify freedom of the press.

Our constitution operates differently to the more culturally familiar US version and its amendments, laying down the mechanics of the branches government in a dry Weet-Bix reading of the Westminster system in all its majesty.

A solid achievement considering the UK constitution was and is unwritten.

But while the constitutional framers finally laid out Westminster’s nuts and bolts in black and white, a key flaw of old Blighty stuck with its colonial offspring.

The Australian constitution assumed a representative, democratic parliament with good common law was the best protection of the rights of its citizens.

To this day, Australia’s parliaments, courts and voters go about their business with the implied understanding a Bill of Rights enshrining freedom of the press is unnecessary.

The question has been argued and defeated many times.

We’ve had three constitutional referendums and two attempts (by Labor governments) to legislate freedom of the press through a Bill of Rights.

All five got an irrefutable thumping in Canberra and at the ballot.

Other Westminster based democracies globally evolved beyond the restrictions of their white, colonial origins and passed legislation to recognise and protect the importance of a free media.

The Howard government, most notably after the 9/11 terror attacks in the US, instead went on a national security legislative spree.

They tested as never before the responsibility of parliament to introduce common law that wouldn’t harm the rights of its citizens.

The power handed to the government by the general anxiety of the Australian population after the 9/11 terror attacks has had dizzying generational consequences.

The Howard government, on the heels of historic election victories, began a campaign of national security reform, beginning the culture of press censorship now settling in the 2020’s.

The Senate inquiry into press freedom was told, since 2001, Australia has enacted 80 pieces of national security and counter-terrorism legislation; more than either the UK or the US.

In an article for The Australian in June 2019, Professor George Williams wrote “they are the sorts of laws one might expect in a police state rather than a democracy like Australia” and “shocking in showing how far media freedom has deteriorated”.

The Labor Party, cowed by election defeats and the attitude of the electorate to past reforms, used the Rudd-Gillard-Rudd administration to institute vocal inquiries but no reforms from their recommendations.

In 2021, the effect of their inaction lingers.

The most damaging effect of national security reform on Australian journalists has been censorship through uncertainty.

Broad legal definitions have allowed agency over-reach in ways unexpected by the press when legislation was passed or surely there would have been louder and more convincing opposition at the time.

When it comes to reporting on matters of “national security” (with a thicket of eighty laws to tramp through to establish just what that is), burden of proof is on journalists to explain their reportage.

Even if demonstrably accurate, balanced and in the public interest, the federal government and public sector agencies can still arbitrarily cripple individual journalists and destabilise the operation of entire media outlets by investigating their work.

The frame of reference to launch an investigation and press criminal charges has broadened dramatically in the 21st century.

The result has been described as “a chilling effect” on what Australian journalists are willing to publish.

The Senate and Parliamentary Joint Committee on Intelligence and Security (PJCIS) inquiries into press freedom were motivated by the June 2019 raids on the home of News Corp journalist Annika Smethurst and the offices of the ABC in Sydney.

These events saw the Australian Federal Police use sweeping national security powers to quickly access powerful search warrants, unchallenged and unscrutinised.

The subsequent raids and the threat of criminal charges were the quiet part of decades of legislation finally spoken out loud.

Both inquiries and the high court have since concluded the raids were government overreach with agencies investigating reportage which was embarrassing to the government and the public sector, rather than damaging to the national interest.

The four Labor members of the PFCIS have since called the inquiries recommendations “a bare minimum”. The High Court ruled material seized in the raids did not need to be returned.

The effects on Australian journalism remain debilitating.

Public debate on freedom of the press is woefully dysfunctional.

Journalists, despite efforts to unite, continue to hobble themselves with factional infighting.

Politicians have exploited this masterfully.

Whenever freedom of the press enters the national discussion, it is quickly and effectively politicised as a question of left versus right.

The most recent instance of former Attorney General Christian Porter’s defamation case against journalist Louise Milligan and the ABC found most Australians less concerned about the horrifying impact of defamation laws on journalistic freedom than on which side won the argument.

Existentially, it’s a moot point.

Both right and left could wake tomorrow to their favourite outlets under federal investigation, facing criminal charges for fair and balanced reportage.

The presence of social media has further complicated the debate.

It’s difficult to present the dire straights of freedom of expression in a country where #auspol is perpetually trending.

After the AFP raids of 2019, the public sector has been forced to examine freedom of the press in Australia.

Their work has been slow and the measurable outcomes few.

The most recent Senate inquiry was told the Morrison government had yet to decide where it would land on the issue of national security reform.

The constitutional catch 22 remains.

Australia doesn’t need to legislate to protect freedom of the press because its democracy implies protection.

The need for freedom of the press to keep democracy accountable has become reliant on a fallacy.

The promise to the electorate is the people’s representatives and public sector agencies will behave in the national interest or face consequences at the ballot.

So far, this hasn’t been the case.

Debate on the subject has been dominated by one political party, convincingly returned to office even as they stretch convention with every term.

Their success has been so convincing and the impact on the public sector so empowering, the opposing political party has quietly given up the ghost.

The Australian press has too late discovered a need to defend its democratic role at a time when its financial muscle is collapsing in a freelance, social media world.

The Australian Greens are currently the only federal party to support legislative protection of freedom of the press.

With metadata and digital search legislation on the way set to further challenge journalistic freedom and integrity, the Australian press remain historically disempowered as the chilling effect sets in.