Journalism’s role must be protected
In the debates around press freedom, a lot of the media's critics tend to dismiss journalists as pleading for special privileges.
"No one is above (the law), including me or anyone else, any journalist or anyone else," the Prime Minister, Scott Morrison, said on Sunday, anticipating the campaign by the Australian Right To Know coalition, which is calling for legislative changes to protect press freedom.
The language is a form of misdirection. It seeks to portray journalists as some kind of self-appointed elite who consider themselves to be above ordinary citizens.
The comments also invite scorn from everybody else. They focus our attention on the individuals rather than the issue at stake.
The danger of that approach is that it undermines the watchdog role that a free press plays in our democracy - a role that assumes that there are times when exposing wrongdoing trumps the secrecy used to cover it up.
The reason the Right to Know Coalition launched its campaign is that a recent slew of national security laws have weakened and confused protections for journalists to the point where a lot of reporting that might have been considered legitimate in the past is now criminalised.
So how do we avoid the problem of protecting that role that journalists play without giving a self-appointed elite some kind of special legal status?
This week, I gathered a group of some of the country's leading journalists, lawyers, academics and civil servants at the University of Queensland to discuss the problem and it quickly became clear that rather than focusing on the person, we should be protecting journalism's function.
That is not as hard as it might seem. In fact, that concept already exists in our legislation, buried in section 122.5 of the Criminal Code.
That section offers journalists a defence if they commit a general secrecy offence. To qualify, the person must have:
"DEALT with the information in their capacity as a 'person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media', and
"HAVE reasonably believed that engaging in the conduct was in the public interest."
Notice that the statute does not define "journalist"; it doesn't even use the term. Instead, if focuses on what the person is doing, and so it implies that anybody who meets the standards set out in the law is able to use the defence.
With a minor adjustment, this could provide the way forward. Logically, the law should focus on what a journalist actually believed - not what a judge might believe months or possibly years later.
That change is needed to ensure journalists are not required to reveal their confidential sources in order to use this defence.
And this provision applies a public interest test, where there has to be a higher purpose to any investigation.
During our discussion at the university, we recognised that there is a wider public distrust of journalists, and that the media can't work effectively without a social licence.
In other words, people need to trust journalists' motives and ethics before they accept any law that grants their work special legal privileges.
That's why we also recognised that to qualify for legal protection, the work needs to meet certain professional standards.
There is no reason why the law can't include a set of tests, asking whether reporting is accurate; whether the person has tried to verify facts; whether it is balanced and fair; and so on.
The standards should necessarily be high; after all, we are talking about giving someone the right to avoid prosecution for exposing issues that are otherwise protected under national security legislation, but that would also give the public confidence that the journalism is worth protecting in the first place.
The final test is that any journalism needs to be intended for publication (as opposed to sending classified documents to a mate, or a foreign power).
My organisation, the Alliance for Journalists' Freedom, agrees that we urgently need to update the way we protect journalism in our unworkable messy legal code.
Clearly any system that criminalises the kind of journalism that exposes issues that are genuinely in the public interest, without damaging national security, is a problem. But rather than a piecemeal set of tweaks to individual statutes, we need to embed the role of the press in the very DNA of our legal code.
That is why we are calling for a comprehensive Media Freedom Act that would filter down to fill all the loopholes in our legislation.
If we define legitimate journalism (as opposed to journalists) in this way, and recognise that it deserves exception from prosecution in cases where there is a genuine public interest in publishing, all of us will be better off.
Peter Greste is UNESCO Chair in Journalism and Communication at the University of Queensland