Journalism is not a crime. So why are reporters being referred to police?

edward snowden

Harsher penalties for intelligence whistleblowers in Australia will deter future whistleblowers like Edward Snowden from speaking about Australia’s surveillance and intelligence gathering.’

The referral to the federal police of journalists covering asylum seeker policy raises serious questions about the freedom of the press in Australia

Journalism in Australia is not a crime. Despite this, journalists who have reported on immigration and asylum seeker issues have been referred to the Australian Federal Police for investigation in a series of attempts to prosecute confidential sources and whistleblowers.

This is a move that should alarm all citizens. It’s not an attack on any particular news outlet. It’s an attack on those who have reported on matters of significant public interest in the increasingly secretive area of asylum seeker policy.

Journalists from Guardian Australia, and the West Australian have all had their stories sent to the AFP by customs, the immigration department and the defence department to ask the AFP to track down their sources. There may be journalists from other news outlets involved.

All journalists have confidential sources to help gather information and build their stories. Sometimes those sources speak out at great risk, and that confidentiality must be protected. The free flow of information is the bedrock of a journalist’s work.

These kind of attacks severely damage the confidence between reporters and their sources and pose a grave threat to effective and responsible journalism. When the federal police go knocking on the doors of a reporter’s sources, sources will soon dry up. People will be scared. And that is exactly the point.

Part of the problem is that the laws surrounding leaks are so broad. The Commonwealth Crimes Act criminalises essentially any disclosure of government information, regardless of the seriousness, regardless of the intent, and regardless of the public interest. Despite recommendations by the Australian Law Reform Commission to amend these laws, we have yet to see any change.

The whistleblower protection scheme introduced in 2013 under the previous Labor government provides limited protections for disclosures to the world at large, and favours protected disclosures internally or to oversight agencies instead. This means that whistleblowers who provide information to journalists can still be left with little protection from the law.

This can’t be viewed in isolation. There is a much broader series of measures at play that all point towards an increasing overreach by the federal government into legitimate reporting and public interest disclosures.

Any of the journalists that are listed in the AFP referrals could have had their phone and web records accessed. It doesn’t take a warrant, just a short one-page form. And there is no privilege or special protection for journalists, a consideration that is being debated right now in the UK. The looming mandatory data retention legislation will compound the problem by ensuring a much greater range of web data is consistently available to government agencies for up to two years.

The insertion of a new offence into the Asio Act that criminalises any form of disclosure about “special intelligence operations” could see journalists jailed for reporting on important intelligence related stories. Harsher penalties for intelligence whistleblowers in Australia will also attempt to deter future whistleblowers like Edward Snowden from speaking about Australia’s surveillance and intelligence gathering.

The Australian government has shown great concern for the awful plight of Peter Greste and his Al Jazeera colleagues who have been jailed in Egypt. They have shown great concern for freedom of the press in the wake of the terrible Charlie Hebdo attacks in France.

That concern must extend to the work of serious public interest reporting in Australia.