A Queensland law academic believes journalists could face decades behind bars for ‘foreign interference’ offences under Australia’s current national security laws.
A recently published University of Queensland paper warns that reporting on issues relating to Australian politics, national security or international relations while working for foreign media organisations could place journalists at risk of criminal prosecution under the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.
UQ School of Law doctoral (PhD) candidate Sarah Kendall’s briefing paper, ‘Foreign Interference Law & Press Freedom,’ asserts the law could apply to any journalist, staff member or source who works for or collaborates with foreign-controlled media organisations.
“There could also be repercussions for journalists working overseas, as any news published in Australia is subject to these laws,” Ms Kendall said.
The current Act covers nine foreign interference offences, with penalties ranging from 10 to 20 years’ imprisonment.
“While these offences require some part of the person’s conduct to be covert or involve deception, this does not exclude legitimate journalistic activities,” Ms Kendall said. “Journalists could be acting covertly whenever they liaise with a confidential source using encrypted technologies or engage in undercover work using hidden cameras.”
The paper comes during the same week that the peak journalists body – the Media, Entertainment and Arts Alliance (MEAA) – warned its members that government electronic powers were intimidating potential whistle-blowers into silence.
The MEAA pointed to research out of Victoria’s Deakin University – ‘Securing Australian Journalism from Surveillance’ – which recommends legislative reforms to protect reporters and their sources.
The association in a communication with members this week said: “Our government and law enforcement agencies have more electronic surveillance capabilities than other Five Eyes partners.”
The Five Eyes partners is an alliance between Australia, Canada, New Zealand, the United Kingdom and United States.
Ms Kendall, in her paper, also advocates for legislative reforms and an occupation-specific exemption to protect journalists working in the public’s best interest. The paper argues that the scope of offences be narrowed to remove “recklessness” and “prejudice to Australia’s national security” as punishable elements.
“For example, a journalist could be accused of recklessly harming national security when they publish a story that reveals war crimes by members of the Australian Defence Force,” Ms Kendall said. “Journalists and their sources could face up to 20 years in prison if any part of their conduct was covert, even if they are engaged in legitimate, good faith reporting.”
Ms Kendall said the law’s Preparatory Offence, which carries a potential jail term of 10 years, risked creating a dangerous precedent when combined with the offence of conspiracy.
“This offence can capture the earliest stages of investigative reporting so a discussion between a journalist and source about a potential story on Australian politics could see them charged with conspiring to prepare for foreign interference,” Ms Kendall said.
Ms Kendall’s paper is the latest report in UQ Law School’s Press Freedom Policy Papers series, a project aimed at laying the groundwork for reform in laws spanning espionage, whistleblowing and free speech as they affect the media.