The Australian is currently in prison in London facing US extradition and 175 years in prison for the same publications which won the 2011 Walkley Award for Most Outstanding Contribution to Journalism. Loading It is the first time in US history the Espionage Act is being used against a journalist and publisher and, as The New York Times and Washington Post have made clear (and as we have warned since 2010), his indictment criminalises journalistic practices used by those newspapers to report in the public interest. Not only has Australia refused to stand up for Assange and condemn this attack on free speech, the government has run with the precedent at home. There is no denying the parallels with the AFP raids on Australian journalists and the Assange indictment: both involve receipt and publication of classified information about Afghanistan, including evidence of possible US and Australian war crimes.

Outrage – at home and abroad – over the AFP raids has prompted an important national conversation about how national security laws can be used to criminalise public interest reporting. Disclosure offences in Australia which capture both whistleblowers and journalists – violate Australia's international obligations to protect freedom of speech. In certain cases, the mere passive possession or receipt of certain types of information (broadly or vaguely defined) amounts to criminal conduct. Federal police launched raids on a journalist’s home and the ABC headquarters in Sydney earlier this year. Credit:ninevms In some cases, there is no requirement of actual or likely harm to national security – or that the journalist knew the information would prejudice national security or do harm. In almost all cases, there is no public interest defence. The UN Special Rapporteur on Human Rights Defenders has expressed concern that these offences may have a chilling effect, causing Australian journalists to self-censor because of the risk of criminal prosecution. The potential sentences are serious, both for journalists and their sources. Under the ASIO Act, sentences range between five and ten years for disclosure of information relating to special intelligence operations. The Defence Act creates offences for unlawfully giving or obtaining naval, military or air force information and could attract a sentence of “unlimited imprisonment”.

A person faces up to 25 years' imprisonment if they "deal" with information that "concerns Australia's national security" and are reckless as to whether it will prejudice national security. Loading Compare Australia with the situation in the UK. With limited exception, the maximum sentence for most offences under the Official Secrets Act is two years imprisonment or a fine. In 2017, the UK Law Commission proposed an increase in the maximum sentence (and asserted that there was no need for a public interest defence). In response, major British newspapers unanimously denounced the proposals as “a threat to democracy” (Guardian), “worthy of the Stasi” (The Times) and “outrageous and nothing less than a threat to Britain's free press” (Sunday Telegraph) – when Australia’s sentencing regime (and lack of public interest defence) is already far worse than anything proposed in the UK. Australian journalists and their sources face not only criminal prosecution, but also unprecedented government power to access information which can identify journalists’ sources. The Australian government is permitted by law to obtain search warrants where journalists have no notice and no ability to challenge the warrant.

In the UK (no bastion of media freedom), journalists at least have the power to challenge warrants based on their protection under Article 10, European Convention on Human Rights. In Australia, we don’t even have an explicit right to free speech in our constitution – or anywhere else. Loading And then there’s our FOI laws. We have a legally enforceable right to information from government. Once requests are made, there are tight statutory timelines aimed at ensuring the fast, free flow of information. The legislation expressly recognises the function of FOIs in promoting representative democracy by increasing public participation in, and scrutiny of, government. Despite this, the FOI system is failing. The OAIC (the oversight body) is drastically underfunded. Their reviews can blow out well beyond a year. Rather than abiding the “open access” principles of the law, the government is always finding for excuses to not release documents. Journalists and NGOs often complain that the government applies the exemptions to disclosure too broadly to justify withholding or redacting swathes of information. For example, the Department of Defence released documents containing details of Australia’s arms exports to the UAE that were almost entirely redacted, rendering them all but useless.

Press freedom is a fundamental requirement of any democracy The Prime Minister’s Department has resisted the release of a diary containing dates of cabinet meetings, claiming they reveal confidential cabinet information. The federal government has been called out for unlawfully withholding more than 10,000 pages of documents from the public, including records relevant to the controversial Adani mine. It takes years and costs money to challenge these decisions, by which time the information may no longer be relevant. FOIs are treated as an illegitimate hindrance, rather than the statutorily enshrined democratic mechanism that they are. Grata Fund, Australia’s first non-profit litigation fund (of which I am a founding director), has been working with journalists and civil society organisations over the past year to document and expose even further failures. That report, to be published early next year, will provide damning evidence of government agencies denying people their right to freedom of information without legitimate justifications. In 2020, we are launching, with Australian universities, a Democracy Clinic where law students will focus on assisting individuals to file and pursue FOIs all the way to the Federal Court of Australia. Grata is committed to ensuring Australians can access information about what is done by government agencies in our names, including through FOI laws.