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Legal and Constitutional Affairs Legislation Committee

AUCHINACHIE, Ms Deborah, Senior Lawyer, Australian Broadcasting Corporation

HAMBLY, Ms Gail, Private capacity

MALEY, Mr Mark, Editorial Policies Manager, Australian Broadcasting Corporation

SCHUBERT, Ms Georgia-Kate, Head of Policy and Government Affairs, News Corp Australia

Evidence was taken via teleconference—

CHAIR: I call the committee to order, and we will resume. I welcome representatives of Australia's Right to Know alliance. Thank you for taking the time to give evidence to the committee today. Information about parliamentary privilege has been provided to you and is available on the website. The committee has received the coalition's submission as submission No. 69. Do you wish to make any corrections to your submission?

Ms Schubert : No.

CHAIR: Would you like to make a brief opening statement before we go to questions from the committee?

Ms Schubert : We think the submission we've made speaks for itself, so we're happy to go to questions immediately.

CHAIR: Thank you very much.

Senator KIM CARR: How is it that Australia's Right to Know has actually been established?

Ms Schubert : We are a group of media organisations that come together for common interest. It was established quite some time ago and we've made a number of submissions in relation to media freedoms, defamation law reform—any areas which are relevant to journalists' ability to do their job and the public's right to know.

Senator KIM CARR: You are saying that the bill does not define the concept of public interest with regard to news gathering. Have I understood you correctly?

Ms Auchinachie : Yes. There doesn't appear to be a definition in the Criminal Code Act. We think that it really shouldn't be tied to a particular definition, because what is in the public interest can change over time. That's why we are instead proposing a reasonable belief that it be in the public interest.

Senator KIM CARR: Is it possible to fix this bill?

Ms Auchinachie : Yes, I think so because there is already precedent in section 122.5 of the Criminal Code Act, which is an exemption to other criminal offences that are about secret information et cetera. That includes a reasonable belief on the part of a person involved in presenting current affairs or in the business of reporting news or expressing editorial or other content in news media.

Senator KIM CARR: The trouble is that the question of reasonable belief is also somewhat contentious. Can you define what is a reasonable belief?

Mr Maley : We had this discussion in relation to a similar process with the espionage bill. It was our view, and we ultimately convinced, I guess, the Attorney-General's Department in that case, that what was significant here was, in a sense, to allow media organisations and journalists—in particular, mainstream media organisations, and that's really what we're talking about here: people who are professional journalists—to retain their prerogative to make a judgement about what is in the public interest rather than what is in the public interest being a judicial decision. It's a small difference, but it is potentially a significant difference. People will vary in their assessments of what is in the public interest. There's no question about that. But what I think is significant, and it was definitely significant when we were looking at the espionage bill, is that the media organisation can demonstrate that it is a reasonable belief 'at the time'. That allows us, in a sense, to be making that decision for ourselves, which we think, as a matter of press freedom, is an important issue. It is ultimately media that has a legitimate, recognised role in making that first important judgement about what is in the public interest and what is not in the public interest in the exercise of this work, rather than it being something that is, if you like, second-guessed by a judge. It's a small difference, but I think it's a significant difference, and there is precedent for it in much more significant legislation, such as in the espionage bill.

Senator KIM CARR: Okay, but the bill doesn't even define what a journalist is, let alone these abstract concepts such as 'reasonable belief' or 'public interest'. What do you say to that?

Mr Maley : I think there is a definition, isn't there, Deb?

Ms Auchinachie : No, that's correct. It doesn't define 'journalist', but instead it refers to an entity:

… engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media …

That's at 122.5(6) of the Criminal Code Act. That is a broad enough description of what a professional journalist does to capture all the activities of mainstream news media.

Mr Maley : I think that is, again, pretty similar to previous legislation, isn't it?

Ms Auchinachie : Yes.

Senator KIM CARR: You're also suggesting though that the bill might increase the liability of media companies for public comment on Facebook pages or other modes of publication, communication or broadcast over which they have no or insufficient editorial control. I take it that some might see that as a media company seeking legal protections not accorded to other social media users. Could you be more precise as to your concerns about this matter?

Mr Maley : This is a practical matter that we confront on a daily basis, and obviously we're still working through it, but the reality is that our business, particularly for the private enterprise members of our coalition but for the ABC as well, is very dependent on our relationship with social media. It's become an important part of the business, whether we're a private enterprise or the national broadcaster. So we are, in a sense, forced to continue to have a relationship with Facebook and YouTube for business reasons, but we don't have, much to our regret, sufficient moderation tools and sufficient control over what happens on those third-party platforms to be able to guarantee that at all times and/or immediately we can avoid the sort of incitement that you're discussing in this legislation.

It's quite conceivable that, for instance, we might do a perfectly legitimate story about a company. It might be about some allegations; it might be a perfectly balanced, cautious story which we put a pointer up to on Facebook, or we put a video up on YouTube or on Instagram. The comments that come about, that are put up by members of the community or members of these activist groups, might incite people to action or give notice of a demonstration that's on. We're just concerned because we don't want to be inadvertently captured as having some liability for that through this legislation. It's a genuine possibility.

I will give you, if you like, a current example of the sort of problem that we could potentially have. As I'm sure some members of the committee are aware, it's rodeo season at the moment. We're doing a lot of stories on rodeos; particularly our regional reporters are doing a lot of stories on rodeos. They are generally pretty positive, low-impact kinds of stories, but we're besieged by complaints by animal rights activists about our rodeo coverage. They're saying that we shouldn't be doing it, we shouldn't be promoting rodeos, but we see rodeos as a perfectly legal and legitimate activity with a long history in Australia, so we continue to do stories about them. But they attract comments and they attract attacks on our social media platforms. We get comments; we get complaints. It's quite conceivable that one could imagine a situation where somebody incited people to protest or have some sort of invasion at a rodeo, and use a social media platform to do it and it's on one of our accounts. It would happen without us being aware of it or being able to take it down straightaway. We're just still conscious of the potential for us to be ensnared in this legislation through that. We're looking for some reassurance that that sort of thing won't happen.

CHAIR: I just cannot conceive of a way that that could possibly meet the standard of intentionally inciting action. You are putting a story on about rodeo season—some people will like it and some won't like it. Some people may, perhaps, be incited to act; but you could not possibly be taken to have met the threshold of intention as a consequence of that. I understand the desire to have it absolutely crystal clear that there would never, ever be a risk that anyone with whom you associate could possibly be ensnared, but on no practical reading of the legislation could that situation arise.

Mr Maley : I guess we're looking for—look, I'm not a lawyer. That's our fear. I'm looking for reassurance that it wouldn't be, as much as anything else, or to see whether there is any way that we could make it more explicit that it won't be.

Ms Hambly : I do have a real concern, and I think that the media companies do as well. It is particularly highlighted by a recent judicial decision in relation to defamation, which is under appeal. Nonetheless, it found that several media companies were potentially liable for defamatory comments put up by members of the public on their Facebook page. I won't go into the details of why it is difficult to get material off Facebook, but that's a fact. The outcome of that is that there is judicial precedent for the possibility of media companies being responsible. That's at least in the civil jurisdiction. We're talking about the criminal jurisdiction here. I think it's not unreasonable for us to have that fear and for it to be clarified. I take some comfort from your view that it couldn't possibly be seen as inciting to put up a legitimate article which is then subsequently commented on by somebody who does incite trespass; but, if the defamation precedent holds, the mere fact that you allowed those comments can get you into that position. It's not one that I think anyone feels comfortable about in relation to criminal proceedings, much less—

Senator KIM CARR: The problem you have is: how do you get reassurance? With all due regard to our Chair, the statement from the Chair does not give you an assurance of the legal position.

CHAIR: No, but a plain reading of the words does.

Senator KIM CARR: It might do that, but we have already had advice here that a plain reading of the words led to court action being taken on defamation. What sort of assurance could you possibly get to satisfy the ABC that they wouldn't be liable for prosecution under this legislation?

Ms Schubert : The words that Mark Maley just spoke are on behalf of all media organisations. We want to raise this issue in relation to this bill because we do think that, when drafting legislation, these considerations need to be given. We need to begin to see legislative drafting in this regard. We want to raise the issue such that the committee could consider it and perhaps an amendment could be made to the legislation that would make it clear that that was actually not the intent.

Senator KIM CARR: That's the point of my question. What would the form of an amendment be, in your judgement, to satisfy you or your concern?

Ms Schubert : We would need to take that on notice. We could get back to you on that.

Senator KIM CARR: Thank you. There has been considerable debate about the possibility of the prosecution of journalists in recent times in regard to other legislation. Do you see that the possibility of the prosecution of journalists under this legislation is in any way linked to the concerns with regard to the recent AFP raids, in that there might be a bit of a pattern emerging?

Ms Schubert : We're concerned about the potential prosecution of journalists in many forums. I'd just like to share this with the committee. The Warwick Daily News last week ran a story about the Green Shirts Movement in Queensland, warning farmers to be on high alert as they had received information about a potential protest in Southern Downs. The reporting said 'tonight', which I think was Thursday night. The Warwick Daily News had posted this story online and sent it for review to our internal legal team, who flagged it as a story that could potentially be caught under this legislation, and it is entirely in the public interest and an entirely balanced story. It talks about a statement posted on Facebook, where the group had said that individuals already known to police were planning action. It goes on to talk about the Warwick police officer in charge who had urged farmers to be vigilant, et cetera, and had given dot points as to what farmers should be doing in relation to these issues. Our concerns are quite broad, but they are very specific in relation to this bill. Unless these provisions are drafted correctly, we do face significant risk, and it does undermine public interest reporting.

Senator KIM CARR: Thank you. That's it from me.

Senator McKIM: Thanks for your time, everyone. Can I just ask a really high-level question: does your organisation believe the Senate should pass or reject the bill in its current form—that is, if it were not amended?

Ms Schubert : We certainly would like to see some further amendments to provide us with that surety about the risk of third-party comments, particularly on social media sites. We also are very keen on the bill proceeding with the amendment to the exemption, although we note that the threshold is dependent on us actually proving, so whether it's an exemption or a defence is interesting, but we do think that's a necessary amendment that's required before the bill should be passed.

Senator McKIM: Is that the second amendment around reasonable belief of public interest? Is that what you're speaking about?

Ms Schubert : Yes, Senator McKim.

Senator McKIM: In the absence of such amendments, do you have a view on whether the bill should be passed or not?

Ms Schubert : We think there's significant concern and we would want those amendments made before the bill were to proceed.

Senator McKIM: Your submission talks about this bill having 'a chilling effect on reporting and public debate'. The story that we just heard, I guess, is one example of that. Do you have any other examples of stories that any of your organisations may have run that you believe might have fallen foul of this legislation had it been in place at the time?

Ms Auchinachie : There are a couple of examples in our submission. Another one potentially not covered in the submission would have been the Four Corners story in 2017 about the greyhound industry in New South Wales and live baiting that was going on. Certainly if it were the case that the live baiting were taking place on a property that was also operating as a primary production business, it would be caught by that. Clearly there were some pretty horrendous revelations in there which led the Premier to ban greyhound racing, albeit for a short period.

Senator McKIM: I saw that show, and there were some horrendous revelations in that show. Just to be clear, what you're telling the committee today is about that Four Corners on greyhound racing and live baiting, the 60 Minutes expose in April 2018 with regard to the live export trade and the Four Corners entitled 'Slaving away: The dirty secrets behind Australia's fresh food'. Is it your contention all three of those publications may have fallen foul of this legislation had it been in place?

Ms Auchinachie : Obviously only if then there were an incitement event that was associated with it, but I suppose those are examples of the public interest and the variety of issues that can be caught by this legislation. I'm not really sure where I'm going with that.

Mr Maley : I think the answer you are looking for, Senator McKim, is that it is at least theoretically possible if you think of the greyhound racing story. As a base principle—and I think all big media organisations are pretty much in the same boat—we don't accept a situation where we are putting our reporters, or journalists of any sort, into a position where they are committing a criminal offence. We don't allow our reporters to commit trespasses, and we don't allow our reporters to, if you like, conspire with other people to commit trespass—because it is already an offence. So our starting position, as a matter of internal policy, is that we don't incite people to commit offences and we don't knowingly allow our own people to commit offences.

The problem that happens with more and more legislation like this is that an offence is considered to have happened in a situation where perhaps a trespass has occurred. Our more general fear in this goes back to other pieces of legislation that have happened in the past: the starting position is that we have committed an offence. There is not an exemption; it is a defence. As we know from the other cases that are going on at the moment, there is absolutely nothing stopping our journalists from being investigated and potentially charged for committing an offence which they honestly believe is for a story that is in the public interest and they are doing their normal jobs as journalists.

This legislation is probably a less obvious example than the espionage bill. Nonetheless the situation could possibly exist—and could possibly have existed in relation to the Four Corners story, without going into all the microdetails of how that was set up—where there is communication backwards and forwards between an activist group and journalists. That's not to say we would have incited people to commit trespass—we wouldn't have—but any sort of electronic communication could certainly give rise to an investigation into whether we might have. One can imagine a situation where a journalist acting in good faith—appropriately—could be seen to have conspired to commit an offence that somebody in a police force or a department, or wherever, did not think was in the public interest.

We can see that this legislation is intended to provide a defence for that. Our concern is that it should be a genuine exemption. If it is only going to be a defence, we should be able to defend ourselves on the basis of our own reasonable belief rather than the higher bar which it is at the moment. So, yes, it is theoretically possible that a program like Four Corners could be affected. I think it is unlikely in practice that this is going to be a common problem, but we do see it as a pattern where a relationship between a journalist and a source, increasingly and in a number of different situations, is potentially becoming criminalised. We were ultimately—though not initially—successful in getting a defence into the espionage bill. And we are very appreciative of the fact that, in the first draft, there is a defence in this bill as well. So we are not outraged, if you like. We recognise and appreciate the fact that there is a defence in this bill and that the importance of public journalism is implicit in this bill. But I guess we would like the bar to be lowered a little bit. I think it would be appropriate that a defence should be less onerous. In fact, we think there should be a blank exemption in the first place. But if it is going to be a defence, rather than an exemption, it should be 'a reasonable belief'—it is a lower bar, a reasonable bar—rather than the vagaries of police forces and judges in defining what is in the public interest. In this area, we believe it is ultimately our job to decide what is in the public interest.

Ms Hambly : In relation to the threshold issue of incitement, a number of the programs we are talking about had very graphic material which I think most people would find deeply upsetting. There is a risk, at least in our view—and it's certainly amounting to the risk of having a chilling effect on journalism—that the mere publication of that graphic material is de facto an incitement. I don't think it is, but I can't say what a judge in those circumstances would consider incitement.

Senator McKIM: That was going to be my next question; you've been very patient, Chair, and this is my last question. It goes exactly to the point as to whether any of you are aware of jurisprudence around incitement, and whether that has informed your views on the bill.

Ms Schubert : No, I don't think any of us are aware of jurisprudence in relation to this. I think we're just very conscious of the general tenor of conversations in relation to public interest reporting generally. We've had other conversations in other forums about advocating and inciting et cetera—although I could give you one example, Senator McKim, from a News Corp publication, which is actually not in relation to the topic of this bill. We published a story on a couple of years ago which was about ISIS informing their followers in Australia and encouraging them to sell goods online to attract infidels to places where they may be harmed. Someone raised a complaint about that story, which was interesting, and it went to the Office of the eSafety Commissioner, who referred it to the Classification Board, who classified it as 'refused classification' on the basis that it was advocating terrorism. So, if you want to know about examples of inciting and advocating in other forums, that's one. It is a concern we do have.

CHAIR: I just want to pick up on what, I think, Ms Hambly said; if I've got the voices wrong, I apologise. A question or two ago it was mentioned that the intense emotional reaction that's often generated by some of the footage of animals in distress can itself be incitement. Was that you, Ms Hambly?

Ms Hambly : Yes, it was.

CHAIR: I just want to tease that out with you a little bit. Even if we accept for a moment that footage of that kind has the potential to incite, there's no way that this offence can be made out unless it is published with the intention to incite rather than some other intention, such as to fulfil a journalist's function of informing the public through writing articles or producing television programs. Can you understand that there's a distinction between the incitement and the intention to incite?

Ms Hambly : Yes, I can understand the difference between incitement and intention to incite. But I'm not sure that that gets us very far in the context of graphic material and then the questions being asked: 'Well, when you put that graphic material up, it must have been your intention to incite. Why else did you put it up? Why did you use that footage?' I don't agree with that position, but I can see it being lucidly put by somebody.

Ms Schubert : And, in fact, with the defamation case that Ms Hambly was referring to previously that involves a number of media companies, what she described there is similar to the judge's opinion in relation to that case, where the judge suggested that the mere publication of stories about a particular topic would have, he asserted, encouraged people and that the purpose of publishing those stories on Facebook was to encourage comments, and that you would know they were defamatory. Hence, again, our concerns have played out in other forums in very real ways.

CHAIR: I understand what you're saying, Ms Schubert, but do you understand that there are completely different tests and thresholds and levels of proof that are required for a civil proceeding like defamation as opposed to a criminal proceeding?

Ms Schubert : Yes.

CHAIR: Do you also understand that there is a world of difference between encouraging a person to comment on a social media platform, which is its very purpose, and the incitement of a person to get up out of their home, go to an agricultural property and invade it as a consequence of producing, say, a newspaper article?

Can you see that they're very different scenarios and not truly comparable?

Ms Schubert : If we published a story online—it could be a story about a cat, but let's say it was a story like the Warwick Daily News story—and a third party made a comment on that, and in that comment was an address for a property that people would know to go to and protest at, then I understand there are differences. But it would seem to some that, in placing that story online and a third party providing the address where other people might gather, it was actually intentional.

CHAIR: Okay. I think what I might need to do—I mean no disrespect in saying so, Ms Schubert, because you're doing a fine job—is speak to Ms Auchinachie, because there's a legal question here. Everything that you're describing, Ms Schubert, could be at best recklessness. But we're dealing with Commonwealth criminal law here, where criminal offences are determined by the satisfaction of two things: a physical element and a fault element. The fault element that is required in this offence is intention, which is the highest possible level of proof, in terms of establishing fault. By way of a hierarchy, you've got intention at the top, recklessness somewhere in the middle and a bunch of others as well. There is a large difference between posting something online in the course of one's actions as a journalist that might indirectly or unintentionally, or as a second or third kind of consequence, incite somebody to act and do something with the express intention of acting. They're very, very different things. I'm sure, Ms Auchinachie, you're best placed to understand the distinction between the two. Do you understand that what are being described as examples, whether we're talking about the greyhound example or the 60 Minutes example in your submission—any of them, really—cannot meet the test of that physical element of intention, as opposed to, say, recklessness?

Ms Auchinachie : I apologise, but I'm not a criminal lawyer, so I'm not really au fait with what the test for intention is.

CHAIR: That's okay.

Ms Auchinachie : But I do appreciate that there are concerns around this. I'm just wondering if there is some additional language that we can add to make it absolutely crystal clear?

CHAIR: All right. I might hand it over to you, Senator Van.

Senator VAN: Chair, you just asked the question I was going to ask. I'll just make a further comment. Possibly with reasonable cause, there are a lot of what ifs being asked about this bill. But the bill is very clear in its language, and I'm not sure that carving out different industries' ability to be able to self-select themselves out of it through a defence of their own opinion is necessarily the right way to go. But we very much have your concerns at heart with this, and I also believe some of the comments made last week should allay those concerns. The other thing I'd say is that I'm familiar with that defamation case. I think it behoves us to see the result of that appeal before making further comment on that, because there's every chance that it might not stand.

Ms Schubert : I'd just like to note, in relation to that defamation case, that, while it's on appeal, we are also seeking law reform in that area.

Senator VAN: It's a reasonable thing to do.

Ms Schubert : Yes—as we're seeking here.

Mr Maley : On the issue of intent, to take, if you like, a non-legal point of view of intent and the public interest: it's easy to conceive it because it's the sort of complaint that we get about the stories, which are pretty objective and not particularly coloured one way or the other, that we do about these sorts of campaigns of trespass. We do get accused by viewers and listeners that we shouldn't be doing these stories at all, because just to do the story gives them publicity, and that incites them, and that what we are doing is not in the public interest. That's a point of view which gets expressed, but if that point of view were to find its way to being followed through an investigation and a court case, particularly in an environment where there's a very, very strong intention to, if you like, starve these groups of oxygen—which we're not making a comment on; we don't feel it's our role to make a comment on the high-level intent of this bill, which is about trespass—it's not what we do. We don't have a view about whether this legislation is appropriate in relation to those groups. But we do have a view that what these groups do is legitimate news and that they're doing it and that it's in the public interest to publish legitimate news about what they're doing.

Some of our viewers already believe that even to publish stories about them is a form of incitement and approval. We don't agree with that view. Our fear is that that line of argument could be used in an effort where we, in effect, become collateral damage in the way we've become collateral damage under the espionage bill, where we realise we're not really the target of the espionage bill but we're becoming collateral damage. There's a fear in relation to this bill that we could become collateral damage and, in an effort to starve these groups of oxygen, we would finish up being in the target for merely doing legitimate uncoloured, objective news stories about their activities and campaigns. That's not to say that this bill shouldn't exist in its primary intention. We don't have a view on that. But we do have a view that we want to make sure that—there is potential that our activity will be criminalised if somebody does believe that we were inciting people to demonstrate in these things by normal news coverage and that the stories that we do, in the view of a particular judge or jury, is not in the public interest. And, in a highly charged environment, potentially, when this bill becomes law, one can imagine that that sort of situation will arise.

I hate to keep going back to the espionage bill, but the espionage bill does show that that can be the case. Journalists can become collateral damage in legislation of this sort where we were not the primary targets of the legislation. That's why we have a concern about it and that's why we feel that fairly small tweaks which make it clear that we have to make reasonable efforts or something in relation to social media and to have the same public interest test that's in the espionage bill, which is our own reasonable belief, rather than the finding of a judge about the actual public interest of the story. We're making a judgement, if you like, about our intent, not the actual story. I think that would be appropriate and it helps to protect appropriate freedoms for the media, which is why it's in the purview of the right to know coalition.

CHAIR: Mr Maley, you've framed your concern there as arising from circumstances where your viewership on occasions say that you shouldn't be running stories of this kind and express a concern that they're happening at all. Do you take any comfort though from the fact that it wouldn't be your viewership who makes a decision—or indeed any one member of the public—on whether or not a prosecution were to proceed under this provision? In fact it would be the independent highly reputable and legally qualified Director of Public Prosecutions making an assessment of whether or not there were reasonable prospects of conviction under the offence, including the fact that they would need a reasonable degree of satisfaction that a conviction could be obtained so that they would need to be sure that the journalist had published with the intention of inciting a person, essentially, to trespass. Even if that could be established they would then have to go on to consider the public interest defence in subclause (2) because, although there is an evidential burden on a defendant, it nevertheless needs to be proven by the prosecution. Does that give you some comfort, knowing that it's being done by the CDPP rather than regular members of your viewership?

Senator McKIM: What; the person who charged Bernard Collaery?

CHAIR: People who are charged with this duty on an independent basis every day.

Mr Maley : I think the honest answer is: yes, it gives some comfort but not sufficient comfort. One of the things about the sort of work I've done for many decades is that you see political climates change. The intention of the bill and the honest intention of the framers of the bill at the moment—I am perfectly prepared to believe that the intention of the bill is exactly as you've described it. But that doesn't necessarily control how it's going to be interpreted or used in potentially a very different political environment—a very different environment of public opinion. These things do have an impact on how these sorts of pieces of legislation can be used. It's not a problem that we see typically in Australia but it's a problem that we see typically elsewhere in the world, where legislation can be misused; I'm not suggesting that that's likely in the current environment. But whenever legislation is done we have to think, 'How could this legislation potentially be misused?' Our fear is that it could potentially be misused in a different environment of public opinion, politics, whatever. Even though it's not the intention of the current framers of the bill—and we accept that it isn't—we could become unintended victims of it. It's a long-term interest that we have in these sorts of legislation; they're around forever once they're passed, and the people who legislate for them have long since gone. In an environment where all the trends are going against the liberty of the media to make its own decisions about what it can and can't do, the more fear we have; that's all.

Senator KIM CARR: I would just make the observation that it's not been unknown in Australian history, where these circumstances have arisen, for legislative instruments to be used for a different purpose to that which they were intended—sometimes decades after legislation is actually passed by the parliament.

Senator McKIM: Like the metadata legislation.

Senator KIM CARR: Many circumstances have arisen historically.

CHAIR: Thank you very much for making time to present to the committee today.