Zoe Daniel (Goldstein, Independent) Share this | Hansard source

I move the amendment circulated in my name:

(1) Clause 8, page 16 (after line 21), at the end of the clause, add:

Journalist activities

(14) To avoid doubt, conduct engaged in by a person who is an employee, contractor or agent of any Commonwealth agency (including the Australian Broadcasting Corporation and the Special Broadcasting Service Corporation) that is engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media does not constitute corrupt conduct if:

(a) the person engaged in the conduct in the person's capacity as:

(i) a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media; or

(ii) a person engaged as part of the editorial staff for the business of reporting news, presenting current affairs or expressing editorial or other content in news media; or

(b) at the time of engaging in the conduct, the person:

(i) was a member of the administrative or production staff of the Commonwealth agency or of a contractor or agent of the Commonwealth agency; and

(ii) was acting under the direction of a journalist, editor or lawyer who was an employee, contractor or agent of the Commonwealth agency.

This amendment goes to the leaking of documents and the potential for journalists, particularly from the public broadcasters, to be penalised for receiving such documents, the fear of which, I believe, can thwart investigative journalism and, by extension, damage democracy.

In 2017, ABC reporters Dan Oakes and Sam Clark published a series of news items about allegations of unlawful killings by Australian special forces in Afghanistan. They were based on hundreds of pages of defence department documents which had been given to the reporters. Following their publication, Oakes and Clark were threatened with criminal prosecution, effectively for being in receipt of stolen property. Those charges hovered over the reporters for three years. Then, out of the blue and without warning, AFP officers raided the ABC's headquarters seeking to find the source of the documents. What is clear is that they wanted to find out who had been the whistleblower. As ABC managing director David Anderson said at the time:

This … raises legitimate concerns over freedom of the press and proper scrutiny of national security and defence matters.

ABC editorial director Craig McMurtrie declared the raid 'a very unwelcome and serious development'.

Now to the NACC legislation. I am pleased that the Attorney-General has seen fit to raise the bar on applications for warrants to raid media organisations and their journalists, by agreeing that they should be scrutinised by a supreme court judge rather than a member of the AAT. The Attorney-General has also enhanced the protections for both reporters and whistleblowers. But I remain concerned about the effect of the meaning of 'corrupt conduct', with a section on reporters employed or engaged by public broadcasters, who are Public Service employees and are therefore captured under this section of the bill.

As a former journalist, I would like to point out that investigative journalism is hard. There are roadblocks. There are obstructions, sometimes of a legal nature, and there is sometimes danger and risk to the safety of the reporters involved. Any further roadblocks that we put in place could potentially paralyse investigations that are much needed for the sake of our democracy and for the kind of transparency that the NACC is supposed to facilitate. Adding fear of prosecution makes these investigations even harder and will potentially dissuade journalists from putting in this work.

The risk of an investigation into the legitimate work of ABC and SBS journalists potentially undermines the statutory independence of the public broadcasters. It could also hobble investigative journalism and media freedom. The government suggests that this won't happen and that, in any event, it would be addressed in prospective amendments to other legislation, including the Public Interest Disclosure Act. Respectfully, to the Attorney-General, I don't think that leaving a known gap, assuming some future change will occur, is appropriate. Therefore, I urge the House to support my amendment, which would put beyond doubt the exclusion of the possibility of its application to ABC and SBS journalists' use of leaked information or documents received in the normal course of their work.

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