Why is it so easy for police to raid journalists?

Police raids on journalists this week have brought the issue of press freedom back onto front pages. The sudden attack on Australia’s free media has surprised some, but the government’s power to conduct such raids has been steadily increasing in the 21st century.

Who can raid journalists’ information?

The Australian Federal Police, who conducted the raids, is responsible for policing national security and other Commonwealth laws. Rebecca Ananian-Welsh, senior lecturer at the University of Queensland’s TC Beirne School of Law, told Crikey that when a story or investigation has to do with national security — which the target of this week’s raids did — the AFP would be the ones searching through journalists’ kitchens and emails. 

Most criminal law, though, is state-based, so warrants connected to raids would be conducted by state police, as when the WA Police raided the Sunday Times’ offices in Perth in 2008 over a story to do with election fraud.

Why are these raids happening now?

Monash University deputy head of journalism associate professor Johan Lidberg said the government has been increasing its powers since the September 11, 2001 terror attacks.

“From a historical point of view there are a number of other raids,” he said. “Historically it has happened, but we’ve now seen a pretty unprecedented escalation. It’s been going on since 2001.”

Ananian-Welsh said warrants similar to the one used at the ABC and News Corp this week over stories from 2017 and 2018 have been around since at least 2015.

“They’ve certainly had the powers to be doing this for a while … leaking secret government documents has always been frowned upon,” she said. “This shows a change in what they’re prepared to do. It seems like a decision to crack down on leaks from inside the government.”

What powers do authorities have?

Last year powers were expanded, making it an offence for anybody to communicate classified information  and allowing broad warrants like the one used at the ABC yesterday. Journalists have a public interest defence if charged (which Ananian-Welsh said had a high bar to prove), but the sources do not.

The powers and amendments are large and unwieldy.

“A bigger concern isn’t whether particular journalists or sources meet the criteria for an offence, it’s how many offences there are and how complicated it is,” Ananian-Welsh said. “These powers have existed but they’ve also expanded. The breadth of the access warrant not only allows them to search but modify, delete and install new things on the network.”

NSW Civil Liberties president Pauline Wright said that expansion of powers last year had led to the “concerning” warrant at the ABC: “To obliterate or change the record as a state agency is extraordinary,” she said. “Up to now there’s been a cautious use of these powers, but this seems to be about a new government that made these changes to the law last year, showing their muscle after a surprise election win.”

Lidberg said at last count there were 64 new laws and amendments related to national security since 2001. “That’s by far a world leader and a dubious world record,” he said. 

Authorities also have less-visible powers relating to data surveillance and data retention that Ananian-Welsh said were even more worrying.

“There are so many covert powers that can be exercised,” she said. “This is the tip of the iceberg … these raids are worrying just because of how many other powers we don’t know they’re using.”

How does Australia compare to other countries?

Lidberg told Crikey that it is “internationally embarrassing” for Australia. He has been fielding calls from international news outlets this week to comment on the raids, all surprised at federal police raiding media organisations. “I would be very surprised if Australia does not drop on the press freedom index next year when it is released,” he said. “In most other mature liberal democracies, whistleblowers have got protections they don’t have here.”

What does this mean for press freedom?

Ananian-Welsh said the raids would have a chilling effect on press freedom. “There will be a lot of sources, not just related to the Afghan files, who have talked to the ABC who will be quite worried now,” she said. “Now the AFP has a very wide-reaching warrant to go through all ABC files and alter them and delete them. That will be making people very scared about going to journalists.”

“Most whistleblowers would think long and hard before they go to the media after this,” Lidberg said. “It’s a big step for them to talk to the media in the first place.”

Lidberg said the media needed legal protection. “If Australia doesn’t take a good, long, hard look at all the legal provisions it’s put in place, we’re going to end up in a situation where the message to all journalists is ‘stay away from writing about terrorism or national security issues, or we’ll come after you’,” he said. “The framework is now so far-reaching and heavy-handed that if you’re a journalist reporting on national security you’ll take one look at the laws and might stay away from it.”

“These raids show that the powers not only can be used for media and sources but they will be used…” Ananian-Welsh said.