Journalists risk prosecution under Australia’s ‘foreign interference’ law

UQ media briefing paper
A briefing paper argues that the scope of offences be narrowed to remove “recklessness” and “prejudice to Australia’s national security” as punishable elements. Image: University of Queensland

UQ News

Journalists may face decades in prison for “foreign interference” offences unless urgent changes are made to Australia’s national security laws, according to a University of Queensland researcher.

PhD candidate Sarah Kendall from UQ’s School of Law warned that reporting on issues relating to Australian politics, national security or international relations while working with overseas media organisations could place journalists at risk of criminal prosecution under the Espionage and Foreign Interference Act 2018.

“The law could apply to any journalist, staff member or source who works for or collaborates with foreign-controlled media organisations,” Kendall said.

“There could also be repercussions for journalists working overseas, as any news published in Australia is subject to these laws.”

The Espionage and Foreign Interference Act 2018 covers nine foreign interference offences, with penalties ranging from 10 to 20 years imprisonment.

“While these offences require some part of the person’s conduct to be covert or involve deception, this does not exclude legitimate journalistic activities,” Kendall said.

“Journalists could be acting covertly whenever they liaise with a confidential source using encrypted technologies or engage in undercover work using hidden cameras.”

Public interest protection
In a Foreign Interference Law and Press Freedom briefing paper, Kendall recommended that the government introduce an occupation-specific exemption to protect journalists working in the public interest.

The paper argues that the scope of offences be narrowed to remove “recklessness” and “prejudice to Australia’s national security” as punishable elements.

“For example, a journalist could be accused of recklessly harming national security when they publish a story that reveals war crimes by members of the Australian Defence Force,” Kendall said.

“Journalists and their sources could face up to 20 years in prison if any part of their conduct was covert, even if they are engaged in legitimate, good faith reporting.”

Kendall said the law’s Preparatory Offence, which carries a potential jail term of 10 years, risked creating a dangerous precedent when combined with the offence of conspiracy.

“This offence can capture the earliest stages of investigative reporting so a discussion between a journalist and source about a potential story on Australian politics could see them charged with conspiring to prepare for foreign interference,” Kendall said.

Foreign Interference Law and Press Freedom is the latest report in UQ Law School’s Press Freedom Policy Papers series, a project aimed at laying the groundwork for widespread reform in laws spanning espionage, whistleblowing and free speech as they affect the media.

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