Extract taken from 'The Media and Entertainment Law Review - edition 1'

Free speech and media freedom

i Protected forms of expression

Australia does not have any express constitutional freedom of speech.

However, the Australian High Court has repeatedly confirmed that an implied freedom of speech in relation to government and political matters arises from Australia’s Constitution. When construing legislation, a presumption applies that the law was intended to be consistent with this implied constitutional freedom (which may affect the way in which it is interpreted). Laws that are not consistent with the implied constitutional freedom even after that presumption has been applied are invalid.

A majority of the High Court in McCloy and Others v. New South Wales and Another found that the test for the constitutional validity of a law is as follows:

1. Does the law effectively burden the freedom in its terms, operation or effect?
If ‘no’, then the law does not exceed the implied limitation and the enquiry as to validity ends.
2. If ‘yes’ to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as ‘compatibility testing’.
The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.
If the answer to question 2 is ‘no’, then the law exceeds the implied limitation and the enquiry as to validity ends.
3. If ‘yes’ to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as ‘proportionality testing’ to determine whether the restriction which the provision imposes on the freedom is justified.
The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:
  • suitable – as having a rational connection to the purpose of the provision;
  • necessary – in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;
  • adequate in its balance – a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.
If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be ‘no’ and the measure will exceed the implied limitation on legislative power.

The High Court considered these principles in 2019 in the context of laws restricting communication, and protest, in relation to the subject of abortion in safe access zones near abortion clinics. Those laws were found to be constitutionally valid. The Court found that they were for a legitimate purpose (to protect the privacy and dignity of people attending the clinic) and were not disproportionate (they were neutral as between pro and anti-abortion view points, and only applied in a restricted area). The law relating to communication generally was not found to burden political speech as it was not connected to any election process (which meant that it did not infringe the implied freedom). The law in relation to protests was found to burden political speech, and was found to be valid on the basis above (it was for a legitimate purpose and was not disproportionate).

There is also case law to support the proposition that principles of open justice are similarly the subject of implied constitutional protection. In Russell v. Russell, a Commonwealth law requiring state courts to hold family law proceedings in closed court was found by a majority of the High Court to be constitutionally invalid. Barwick C J observed that ‘the courts of the States . . . are in general required, because of the nature of the courts themselves and of the functions they perform, to sit and exercise jurisdiction in a place open to the public’. The Court in that case found that the Commonwealth did not have power to regulate state courts, and that the circumstances in which state courts can be closed must be regulated by state legislatures.

Principles of open justice have been the subject of close attention in the past year for two reasons. First, the NSW Law Reform Commission is conducting a review of laws affecting open justice, and the Victorian Law Reform Commission is conducting a review of contempt laws. Second, journalists and media organisations have been charged with contempt in relation to publications in connection with the trial of Archbishop George Pell.

ii Newsgathering

Key laws affecting newsgathering in Australia include the law of trespass, surveillance laws and criminal laws prohibiting the release to the media of certain information concerning government and security matters.

Under the law of trespass, journalists can go to the front door of a private property to request permission to film, but if refused permission cannot thereafter film on the property.

Australia has state, territory and Commonwealth surveillance laws, which are different in substance. Consequently, it is important to understand which laws apply in the state or territory in which newsgathering activities are undertaken. There are surveillance laws affecting the recording of conversations, use of devices to hear or monitor conversations, video recording, use of tracking devices and computer surveillance. In relation to the recording of conversations, the Commonwealth law applies in respect of any communications intercepted when passing over the public switched telephony network, and state and territory laws generally otherwise apply. The applicable law is generally that of the state in which the recording is made.

Carriers and carriage service providers have obligations to retain certain telecommunications under the Telecommunications (Interception and Access) Act 1997 (Cth). Those obligations have been criticised on the basis that they give certain intelligence agencies a means to identify journalists’ sources. In order to do so, they must obtain a warrant from a judicial officer or lawyer appointed by the relevant minister. Hearings take place in secret and without participation by the journalist, which has given rise to concern about the adequacy of the protection this process offers.

iii Freedom of access to government information

Australia has a federal system, with Commonwealth, state and territory governments. Freedom of information legislation is in place in relation to the Commonwealth and each state and territory. The legislation enables journalists to seek access to documents held by government agencies. The documents must be produced unless an exception applies. Media organisations are concerned that agencies too often rely upon exceptions and have called for reforms to facilitate more extensive, and faster, media access to important government documents.

Court rules also allow for journalists to seek access to documents about court proceedings. In general, access is allowed to material read or relied upon in open court unless a suppression order is in place, or there are exceptional circumstances. In general, access to material on a court file that has not yet been read or relied on in open court is not readily given.

iv Protection of sources

Article 3 of the Media, Entertainment and Arts Alliance Code of Ethics requires that journalists should aim to attribute information to its source and not agree to anonymity without first considering the source’s motives and any alternative attributable source. It provides that ‘where confidences are accepted, respect them in all circumstances’. Australian professional journalists generally abide by this rule, and some have gone to jail for not revealing sources when ordered to do so.

The newspaper rule (also known as ‘the rule in Cojuangco’) allows media organisations to avoid disclosing sources until the final hearing of a defamation action. If, however, a journalist gives evidence at the final hearing (which is important for defences such as statutory qualified privilege) and is asked to reveal a source then he or she is obliged to do so, and refusal to do so constitutes contempt.

Under Section 126K of the Evidence Act (Cth), journalists are protected from compulsion to disclose confidential sources, but this is subject to a power of the court to order disclosure if it is satisfied that the public interest in requiring an answer outweighs countervailing public and private interests. Each state and territory, except for the Northern Territory, has similar provisions in place.

v Private action against publication

The main basis upon which injunctive relief restraining publication is obtained in Australia is breach of confidence. This cause of action is available where the journalist is subject to a duty of confidence or (more commonly) is on notice of a breach of confidence by his or her source. Equity generally imposes a duty of confidence on a person who is on notice that information has been imparted to him, her or it in breach of confidence.

Australian courts do not generally grant injunctive relief on the basis of defamation. The reason for this is that the courts recognise that there is a public interest in freedom of speech.

vi Government action against publication

In June 2019, the Australian Federal Police (AFP) executed search warrants against media companies and journalists related to media coverage critical of the government and defence force. The relevant coverage was as follows:

  1. In 2017, the state-owned Australian Broadcasting Corporation (ABC) published a series of stories collectively called The Afghan Files, which detailed allegations regarding members of the Australian special forces when on tour in Afghanistan, including allegations of unlawful killings.
  2. In 2018, News Corporation’s newspaper The Daily Telegraph published a story reporting that the heads of the Defence and Home Affairs ministries had discussed the potential for the Australian Signals Directorate to be given powers to secretly access emails, bank accounts and other personal data, provided it had approval from relevant government ministers.

The AFP executed search warrants at the ABC’s Sydney-based head office, as well as at the home of a News Corporation journalist, Annika Smethurst. The search warrants were the result of investigations into the alleged unauthorised disclosure of government information by a Commonwealth officer, contrary to Section 70 of the Crimes Act 1914 (Cth) (since repealed and replaced by Part 5.6 of the Criminal Code Act 1995 (Cth)).

While this legislation is framed broadly, as an offence akin to breach of confidentiality, it has been used in this instance to address concerns regarding the handling of national security information.

The AFP is currently prosecuting one former Commonwealth official and his lawyer in relation to allegations that they leaked documents pertaining to the ABC’s publication. The AFP has also confirmed that it is considering prosecutions against the journalists who authored the publications. These matters are ongoing.

On 4 July 2019, the Parliamentary Joint Committee on Intelligence and Security commenced an inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. The Committee has been requested to report back to both houses of parliament in the near future.

In October 2019, Australia’s major media organisations, through Australia’s ‘right to know’, launched a campaign against Australian government secrecy seeking reform of laws, including better whistleblower protections and court oversight of various government powers. The campaign included extensive advertising and editorial content highlighting the problems with existing laws and practices.