A decision by the NSW Supreme Court to force journalists to hand over a draft story, before it is even published, is a chilling threat to media freedom in Australia.
If the order is not overturned on appeal, it could spell the end of a free and balanced press in this country, as journalists will be unable to get both sides of any story for fear of someone demanding their notes in court and subsequently having the story suppressed.
The issue emerged on the 13th of May, while most of Australia was busy focussing on the election campaign.
In an unprecedented move, NSW Supreme Court Justice Stephen Rotham ordered Network Nine and its newspapers (The Age and the Sydney Morning Herald) to hand over copies of an upcoming newspaper and television investigation before it was completed, let alone published.
The court also stopped publication of the story as the case, relating to cosmetic surgeon Joseph Ajaka, unfolds.
In an article, Nine journalist Bevan Shields wrote:
…if upheld, the decision would set an alarming precedent. It could open the floodgates for the rich and powerful to ask the court to see our stories in advance and then launch legal proceedings to prevent publication. It is a fundamental threat to source protection.
In another article, the renowned Nine journalist Nick Mackenzie wrote:
If the subject of a piece of journalism is wealthy enough, following this precedent they can go to the court and have a story handed over prior to publication. This will empower people who want to suppress stories to use the courts to do just that. It is one of the most alarming court decisions that I’ve come across in my 20 years as a journalist.
The Walkley Foundation said it is extremely concerned about the ruling, adding it has left Australian journalists and publishers considering the future of free speech and the dissolution of a democratised media industry.
Walkley Deputy Chair Karen Percy said:
This is a troubling development for our industry. This strikes at the heart of press freedom. It goes against the basic principles of journalism to protect sources and not to allow undue influence on a story before publication or broadcast. It has the potential to put all journalism at risk.
It is not yet known when an appeal against the disclosure order will be heard.
The court case closely followed the release of the Reporters Without Borders’ World Press Freedom Index for 2022, which saw Australia slide from 25th to 39th position out of 180 countries — ranking far below New Zealand and even East Timor and Bhutan.
The organisation said “ultra-concentration” of media ownership, combined with growing official pressure, endanger public-interest journalism in Australia.
The Australian journalists’ union, the MEAA, has also released its latest annual report on media freedom in Australia, calling on the federal government to take urgent action against threats to a free press.
The MEAA is calling for the following changes:
- Boosting the Public Interest News Gathering (PING) program for a minimum of three years with $150 million per annum available to the small and medium news sectors, with substantial funds quarantined for providers of regional news services.
- Restoration of adequate funding to public broadcasters the ABC and SBS, with greater certainty over a five-year funding cycle.
- Implementing reforms to protect whistle blowers who disclose confidential information to media in the public interest.
- Conducting an urgent review of Australia’s security laws to remove impediments and sanctions against public interest journalism.
- Harmonising journalism shield laws across all national, state and territory jurisdictions to protect journalists from identifying sources.
- Introduce new provisions to ensure that any future media mergers meet a “diversity of voices” test before they are approved by government regulators.
- Financial reforms to enable the costs of journalism to be offset via taxation incentives.
- Increasing international advocacy in support of journalists and allied workers when they are exposed to arbitrary detention, imprisonment and threats to their life, and adopting the International Federation of Journalists’ International Convention on the Safety and Independence of Journalists and Other Media Professionals.
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