Attorney General wades into press freedom debate, says his approval is needed before journalists can be charged

The debate around press freedom has taken another turn with the federal Attorney General Christian Porter issuing a directive which prevents journalists being charged under certain sections of Australia’s secrecy laws without his formal approval.

The order could shield News Corp’s Annika Smethurst and the ABC’s Dan Oakes and Sam Clark who were named in Australia Federal Police (AFP) warrants used during raids in June and have not yet been cleared of any criminal charges. The move, however, has ignited debate about an elected politician’s direct involvement in police matters and press freedom.

Attorney-General Christian Porter may now be the answer to the ABC and News Corp Australia’s press freedom concerns

Now, Smethurst, Oakes and Clark can only be charged if the Attorney-General gives written consent to the charges. A directive was signed to the Commonwealth Director of Public Prosecutions (CDPP) in September, the details of which have only come to light this week. The decision follows legal challenges from both the ABC and News Corp Australia over the legitimacy of the raids and the warrants used.

“The direction means where the CDPP independently considers that there is a public interest in a prosecution for one of the relevant offences involving a journalist, the consent of the Attorney-General will also be required as a separate and additional safeguard,” Porter said in a statement.

“This will allow the most detailed and cautious consideration of how an allegation of a serious offence should be balanced with our commitment to freedom of the press.

“I have previously said that I would be seriously disinclined to approve prosecutions of journalists except in the most exceptional circumstances and would pay particular attention to whether a journalist was simply operating according to the generally accepted principles of public interest journalism.”

Porter hasn’t yet commented on the cases regarding Smethurst, Oakes or Clark.

An ABC spokesperson called the directive a ‘welcome step’, but said the organisation continues to look forward to the results of the two press freedom inquiries which have been triggered by the raids.

“The Attorney General’s directive is a welcome step. It is one plank in a raft of legislative reform that the ABC identified in its submissions to the two concurrent media freedom parliamentary inquiries,” said the spokesperson.

“The ABC looks forward to seeing the recommendations from those inquiries as well as an expeditious conclusion to the current AFP investigation into ABC journalists.”

Campbell Reid, group executive for corporate affairs, policy and government relationships at News Corp Australia, was harsher, calling the direction “unremarkable”.

“The direction issued by The Attorney General is unremarkable. They make the Commonwealth Department of Public Prosecution seek the Attorney General’s consent to take legal action against journalists in a few more instances but they offer no comfort for journalists disclosing information in the public interest that they are safe from prosecution for doing their job,” said Reid.

“This so-called safeguard falls a long way short of what media organisations are seeking to recognise the role of journalists to keep the public informed.”

The Law Council of Australia has also weighed in on the move, with president Arthur Moses SC citing grave concerns over the Attorney General’s involvement with press freedom.

“I have grave concerns that this sort of direction undermines the independence of the CDPP by requiring her to obtain the consent of the Attorney General before prosecuting an offence,” Moses said.

“What will enhance press freedoms in this country is a proper review of our laws to ensure that the actions of journalists doing their job as a watchdog of government are not criminalised and put at risk of prosecution.

“I have no doubt the Attorney General would act in good faith. But it puts the Attorney General – a politician – in the position of authorising prosecutions of journalists in situations where they may have written stories critical of his government.

“It creates an apprehension on the part of journalists that they will need to curry favour with the government in order to avoid prosecution. The media must be able to lawfully report on matters of public interest without fear or favour.

“Journalists should not need to fear prosecution because of a story that embarrasses government.”


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