Laws restricting investigative journalism are 'worse than ever before'

The Sydney Morning Herald 3 weeks ago

The lawyer who is representing the ABC in its legal fight against the raid on its headquarters says that, in 25 years as a media lawyer, he has never seen worse legal conditions in which to do investigative journalism.

Matthew Collins, QC, told The Age and The Sydney Morning Herald that the obstacles thrown in the way of reporting have got higher, politicians are "no great fans" of the media, and lawyers have too little ammunition under the law when trying to argue in court in favour of a free press.

Illustration: John Shakespeare

The comments come as the High Court agrees to hear a number of cases relating to press freedom. News Corporation is arguing against the warrant that the police used to raid reporter Annika Smethurst. They have also argued the government's secrecy laws were in breach of the implied freedom of political communication that the High Court has found exists in the constitution.

The High Court has also this week agreed to hear oral arguments in a special leave application against a Federal Court defamation decision in a case brought by political donor Chau Chak Wing against The Age, The Sydney Morning Herald and the ABC.

Depending on the outcome of the ABC's free-speech argument in the Federal Court against the police raids, that case might also find its way to the High Court.

Dr Collins, one of the country's most prominent media lawyers, could not comment on the ABC case as he was involved in it but said journalists daily confronted challenges thrown up by national security laws, "of which there is a proliferation", defamation laws that predate the internet age, and "rampant suppression orders" in some jurisdictions.

At the same time, the internet and the emergence of 24 hour-a-day journalism had led to the "gross disruption of the traditional media's business models", while courts treated every iteration of a story online "as if it's in aspic".

"The problem is that the law still treats every moment in time as if it's a daily edition of a newspaper or the 7pm ABC news bulletin," Dr Collins said.

"Journalists are required to produce more work across more media than any other time, but the law treats each moment in time as finite. In the real world the media self corrects, but it can be too late for crystallising a legal right, such as contempt, defamation or the operation of national security law."

The law should not demand perfection from journalists, he said. Where they had done diligent research, that should be recognised by a court even if the conclusions do not meet a legal standard of proof. That's the situation in other major democracies, but not in Australia.

Rebel Wilson with Matt Collins.

"It doesn't follow that the journalism is irresponsible, or undeserving of protection just because it wouldn't stand up in court," Dr Collins said. However, the media "doesn't have many friends in power because the role of the media is to hold the powerful to account".

Media organisations had sometimes not helped the situation, he said. "Like any industry, journalism is a mixed bag. I've seen my fair share of highly responsible public interest journalism, and egregious reporting that's ruined people's lives." Dr Collins has represented both sides in defamation cases, including Rebel Wilson's multi-million-dollar claim against magazine publisher Bauer media.

But he said media organisations had "not been very effective in persuading those in power why the media is necessary to the healthy functioning of democracy'', and they undermined their own arguments by "constantly sniping at each other" over issues that should be common cause.

However, his "overall experience is that journalists are responsible professionals doing their best in a disrupted media environment and a pretty hostile legal environment".

Dr Collins said Australia was the only western country without a charter that enshrined in the "legal architecture" the rights of a free media and "allows us to balance competing rights in a much more sophisticated way than currently allowed".

"Any law that criminalises journalism without an adequate protection of the public interest - as many do - is an intolerable burden that we shouldn't tolerate in vibrant democracy," he said.

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