Pressing for freedom
“At its least, the roundtable may be a wake-up call for the media, which has been far too sleepy about protecting its patch as all these incursions and legal impediments have built up around it.”
On Monday, February 27, media executives, editors and assorted interested parties will descend on Canberra for a journalists’ jamboree, otherwise known as a media roundtable, hosted by Attorney-general
Mark Dreyfus.
Oddly enough, for a discussion about press freedom, it will be held under the Chatham House Rule, which means those attending can use any information they receive but can’t identify the source. The guest list has been drawn up by the A-G’S department and is not publicly known, but includes representatives of print, radio, television and online news publications, and possibly the top brass at the journalists’ union and the Australian Press Council.
No one has much of an idea about the day’s agenda and none of the media lawyers we contacted – who struggle with press freedom on a daily basis – have been invited.
In announcing Monday’s gathering, Dreyfus pointed to two parliamentary reports: the parliamentary joint committee on intelligence and security (PJCIS) report of August 2020 on the impact of law enforcement and intelligence powers on press freedom, and the May 2021 report from the senate standing committee on environment and communications on freedom of the press.
Both of these came about in response to the Australian Federal Police (AFP) raids on the home of journalist Annika Smethurst and on the ABC’S Ultimo headquarters.
The PJCIS made 16 recommendations, mostly tinkering at the edges: a beefed-up role for public interest advocates who deal with journalists’ information warrants; the need for “cultural change” at security agencies; and greater transparency about the number of covert and overt warrants obtained by enforcement agencies.
Recommendation 8 gave rise to the most interesting possibility: the creation of a mechanism for journalists to consult informally with security agencies about public interest news stories.
Britain has such an arrangement, whereby the media can choose to seek advice on national security stories from an agency at arm’s length from the government.
Significantly, the PJCIS report was non-committal on whether national security, secrecy and penalties of imprisonment had a “chilling effect” on journalism. It rejected submissions that the arrangement allowing security agencies to collect reporters’ metadata without notification should be scrapped.
The chilling effect works in mysterious ways – it must have played a part in the
ABC’S decision, in February 2018, to hand back to the government a filing cabinet full of government documents and potentially interesting news breaks.
The documents turned up at a secondhand furniture store where old departmental filing cabinets went on sale in Canberra. In this case, two of the cabinets were jam-packed with AUSTEO secrets (meaning they are to be seen by Australian eyes only).
Among a host of other details, the files revealed that during the previous five years the federal police had lost nearly 400 national security files.
Barely had the ABC begun reporting the contents of this treasure trove than the government waved its national security card and the national broadcaster obligingly returned all the documents.
The senate report on press freedom, chaired by Senator Sarah Hanson-young, made recommendations on freedom of information, federal secrecy offences, whistleblower legislation, shield laws for journalists and their sources, and warrants that give agencies access to journalists’ information.
Dreyfus supported the findings, in general terms, but added that more needs to be done.
In relation to the AFP’S Smethurst raid, the High Court said the warrant was illegal, but not illegal enough to stop the AFP keeping the discovered material on a USB stick – in other words, material unlawfully obtained from a journalist could be retained and used.
Smethurst had broken a story on discussions within government about new powers for the Australian Signals Directorate to spy on Australian citizens – a news report the security agencies believed was not in the public interest.
The raid on the ABC sought to gather evidence about the background to and the sources of information used by the broadcaster for a series of reports called “The Afghan Files”.
Justice Wendy Abraham of the Federal Court rejected the ABC’S challenge to that warrant. The ABC said it would not appeal the decision as “we don’t believe we can litigate our way to reforming fundamentally bad laws”.
Right now, a host of inquiries has been initiated by Dreyfus. Amendments to the Public Interest Disclosure (PID) Act were introduced late last year, providing for the commencement of the national anticorruption commission. A senate committee is to report by March 14.
Further whistleblower protection amendments are foreshadowed for this year to give better protections to whistleblowers in line with the Moss Review of 2016, possibly including a whistleblower protection commissioner.
David Mcbride, who blew the whistle to the ABC on alleged war crimes by Australian forces in Afghanistan, the reporting of which was partly responsible for the Brereton report, was forced to withdraw his application for PID protection after the Commonwealth claimed public interest immunity in relation to expert testimony.
Richard Boyle, the tax office whistleblower, also applied for PID immunity and is waiting on a decision from the District Court of South Australia.
The prosecution of Bernard Collaery, who revealed to ABC journalists Australia’s eavesdropping on the government of TimorLeste during sea-boundary negotiations, was dropped by the attorney-general in July 2022.
Collaery’s client, Witness K, had already pleaded guilty to an offence under the Intelligence Services Act and was given a suspended sentence. These whistleblower cases involved the publication of accurate public interest news – often prompting further investigations and inquiries.
Commonwealth secrecy offences and the National Security Information (Criminal and Civil Proceedings) Act 2004 are both under review at the moment – two areas that impact adversely on public interest newsgathering and reporting.
The NSI Act was used to wrap the government’s proceedings against Collaery and Witness K in secrecy – to the consternation and outrage of many. It was also used in the Ben Roberts-smith case to close reporting of aspects of the trial.
Grant Donaldson, SC, the Independent National Security Legislation Monitor, is reviewing “the operation and effectiveness of the NSI Act ... [to] consider how the Commonwealth can better balance the vital importance of open justice with the essential need to protect national security”.
The NSI legislation also was used in what is known as the “Alan Johns” case, a pseudonym for a former intelligence officer who was prosecuted and jailed in complete secrecy. The Independent National Security Legislation Monitor said this should not have happened “and it should never happen again”.
Federal judges are only too eager to comply with Commonwealth applications for closed courts and secret evidence. The media, frankly, should be kicking up much more of a stink about it.
Just before Christmas last year Dreyfus announced a “comprehensive and overdue review of Commonwealth secrecy offences”.
In a media release, he said previous reviews had raised concerns about “the number, inconsistency, appropriateness and complexity of Commonwealth secrecy offences”. There are 11 general secrecy offences under Commonwealth law, 487 specific secrecy offences and more than
200 non-disclosure duties.
Since the 9/11 attacks in the United States, Australia has seen a maze of securityrelated enactments, confounding in their complexity and uncertainty. The definition of national security is far from clear, the available defences few and in most instances worthless, while the penalties are severe.
Among the restraints that affect public interest journalism are “off-limits reporting” under the NSI Act and the Australian Security Intelligence Organisation Act’s “special intelligence operations”; the criminalising of government leaks and leakers under the Criminal Code; injunctions and super injunctions brought by the government, namely the Securency bribery case; restrictions on reporting of terrorist acts; plus, of course, the metadata and anti-encryption regimes that allow the state to snoop on and monitor the work of journalists.
Dreyfus has announced the government has accepted all but one of the PJCIS recommendations to make the collection of metadata – including journalists’ metadata – more “transparent and with adequate safeguards”. The reforms were recommended in October 2020 and lay dormant on the Coalition’s watch.
There are other points, too, that Monday’s roundtable will need to consider.
One point is contempt charges against journalists and editors over reports of the
Pell verdict. Dreyfus’s media release says: “Journalists should never face the prospect of being charged or even jailed just for doing their jobs.”
Then there is the torrent of court suppression orders that restrict reporting and open justice, which numbered more than 1000 nationwide last year.
There are the latest Federal Court rules that keep the details of new cases secret for weeks, even months – part of the judiciary’s ever-growing animosity towards the media.
There is also the ongoing question of what constitutes a journalist and what this definition means at law.
And of course, there is the terror of defamation, and the need for serious amendments that remove trip-wires for responsible journalism.
Related to that is the looming restraint on public interest reporting that would be a tort for serious invasions of privacy, foreshadowed by the attorney-general’s department this month.
This is a new reputational tort with remedies as long as your arm, including damages, injunctions and account of profits.
In the hands of the usual tribe of “reputation repair” lawyers, a privacy tort would be a picnic. Privacy litigation would replace defamation as the main game, as has happened in Britain. Injunctions could see important stories put in the deep freeze, never to thaw out in public.
Maybe this is all too much for an afternoon’s worth of jawboning by media executives and editors. It’s unlikely the limitations under which a “free press” in this country operates will be wound back in any hurry.
At its least, the roundtable may be a wake-up call for the media, which has been far too sleepy about protecting its patch as all these incursions and legal impediments have built up around it.
“[Medical abortion] needs to be safe, it needs to be affordable and it needs to be accessible … [But] we can’t reduce barriers and risk women’s safety and quality of care. We can’t trade off access for safety.”
A decision is imminent that could greatly improve access to early medical abortion – a procedure still out of reach for many across swaths of the country. The Therapeutic
Goods Administration (TGA) is expected to respond within the next few weeks to a set of applications by non-profit pharmaceutical provider MS Health to allow any general practitioner to prescribe the mifepristone and misoprostol drugs that are used in combination to terminate pregnancies up to nine weeks.
MS Health, the subsidiary of national abortion and contraception provider MSI Australia, is the sole importer and distributor of the drugs, branded as MS-2 Step. The procedure, also known as EMA, is endorsed internationally and can be carried out at home instead of a surgical abortion, which requires admission to a clinic or hospital. MS Health lodged three applications with the TGA in December to amend risk management around the drugs: by scrapping registration for GPS to prescribe and for pharmacists to dispense the drugs, and by dropping an additional authorisation in order to facilitate faster scripting.
Mifepristone was approved for commercial importation in 2012 and added to the Pharmaceutical Benefits Scheme in
2013 as one of then prime minister Julia Gillard’s last acts in office. But the steps towards making abortion safe and accessible in Australia have been laborious; it has only been decriminalised across the country since 2021, with Western Australia a semi-exception as it still regulates the practice through its criminal code.
Changes to telehealth requirements in 2020 due to the pandemic made some difference, allowing mifepristone and misoprostol to be prescribed over the phone rather than solely in person. But GPS are still required to register with MS Health and undergo specific training to prescribe a medical abortion – and fewer than 10 per cent meet those requirements – and pharmacists must also be registered to dispense the medication. As of December 2022, there were just 3885 active prescribers (GPS and obstetricians/gynaecologists combined) and 5472 active dispensers. Some GPS won’t provide abortions on religious or moral grounds, and the logistical and administrative hurdles are a further disincentive.
“These kinds of restrictions added to the stigma around abortion rather than freeing it up,” says Dr Danielle Mazza, the chair of general practice at Monash University and a leading academic on reproductive health in primary care. She describes MS Health’s proposal as “baby steps” in the right direction of deregulating medical abortion entirely. Examples such as Sweden, where midwives can administer medical abortions as reproductive health professionals, and Ireland, where abortion is widely available at no cost, are possible models for Australia, according to Mazza.
But the proposal’s impact on the availability and accessibility of abortion services would be especially consequential for those in rural areas or without the financial capacity to access private clinics. In these regions, it could have life-altering consequences, says Anna Noonan, a PHD candidate at the University of Sydney and SPHERE Centre of Research Excellence, who focuses on access to reproductive healthcare in rural settings. She outlines multiple instances of systemic failures that she’s encountered in regional areas, including providers who prefer to keep their status quiet to avoid being overwhelmed with referrals, and doctors who are not providers of EMA actively discouraging patients who had already decided on a termination.
“Trying to even get advice on what to do, to make a decision to possibly access services, was a complete clusterfuck,” she tells The Saturday Paper.
Rural women are not only statistically more likely to have an unintended pregnancy, they are also overwhelmingly more likely to encounter obstacles in accessing reproductive healthcare, according to Noonan.
“You do hear moments of brilliance where the system works. But I feel like that system only works if there’s a great nurse who takes that phone call,” she says.
That said, one GP provider based in northern NSW was less sure that the proposed reforms would do much to increase the level of overall provision. “I think there’s a misconception around what it would be from them [GPS] and what it would require, and that comes from the shame and stigma around abortion,” says Dr Monica Taylor.
Her view was that misconceptions and assumptions, rather than administrative burdens, were the main cause for a lack of access. “It’s not onerous, it’s not expensive, the registration is very straightforward,” she says.
On average, a quarter of people with the reproductive capacity to do so will have a pregnancy in their lifetime in Australia. Most who have abortions already have children. Over the decade since medical abortions were approved, their use has increased relative to surgical procedures, though the overall abortion rate appears to be declining.
MS Health intends for every GP to become a provider of mifepristone and misoprostol, in much the same way as any other medication. Jamal Hakim, managing director of both MS Health and MSI Australia – formerly Marie Stopes Australia – says the proposals, if successful, would be “the biggest change since medical abortion was introduced”. “It means that from an administrative and regulatory perspective, we’re moving into a direction that allows self-determination by women and pregnant people, and that they’re able to seek the support that best supports them,” he says.
Asked why it took so long to push the applications, he described the decision by the United States Supreme Court to end the right to abortion in the US last year as a catalyst.
“As terrible as [the overturning of ]
Roe v Wade is, it’s been a wake-up call for everyone in Australia to go, ‘Wow, this is actually a reality check that we can go backwards very quickly’. Overwhelmingly Australians support reproductive rights … Abortion rights are critical rights, and they are tier 1 services that need to be delivered regardless of what’s going on.”
MS Health’s proposal would likely enable the public system to take on more procedures, at a lower cost to patients than going through a private healthcare provider. The current cost for a medical abortion in Australia begins at $42.50 for the cost of medication – if the initial consultation is bulk-billed, and blood tests and ultrasound are covered by Medicare – to $400-$550 for a private procedure through one of
MSI Australia’s clinics. Patients are usually encouraged to take time off work given the procedure takes two to three days and can be painful.
“[Medical abortion] needs to be safe, it needs to be affordable and it needs to be accessible,” says the president of the Royal Australian College of General Practitioners (RACGP), Dr Nicole Higgins.
But in relation to MS Health’s applications, she urges caution to ensure that training and consultation are prioritised, alongside access to hospital intervention in case of complications and other support services. Higgins stresses the need for continuity of care given the complex nature of abortion services; a patient would likely at least require an ultrasound and counselling before the procedure, as well as aftercare including blood tests to ensure the procedure was successful, and further counselling.
“We can’t reduce barriers and risk women’s safety and quality of care. We can’t trade off access for safety,” she says.
Higgins and the RACGP have called for the medication to be part of the “doctor’s bag” of emergency medication available to GPS to prescribe and dispense at the point of consultation, rather than patients having to find a pharmacist that stocks the medication. And the RACGP would like to see more funding for GPS to meet the need for increased EMAS, along with harmonised legislation across the states.
MS Health hopes that TGA approvals of its application would trigger a national wave of legislative change to allow other healthcare professionals such as nurses and Indigenous healthcare workers the ability to prescribe the MS-2 Step. Jamal Hakim and his team say their discussions with state and territory health departments have been positive, though the Victorian Department of Health tells
The Saturday Paper: “Any proposed changes to how medications can be prescribed are considered on a case-by-case basis and would be subject to the review and endorsement of clinical experts as part of the TGA approval process, as is required for any changes to prescription protocols.”
MS Health expects the TGA to release its decision soon after its meeting next week. This timing coincides with the convening of the National Women’s Health Advisory Council, chaired by Assistant Minister for Health and Aged Care Ged Kearney, which will address issues concerning access to reproductive healthcare.
The years-long push for decriminalisation exhausted much of the political opposition to abortion reform. Though New South Wales Premier Dominic Perrottet voted against decriminalisation in 2019, and his views are shared among some conservatives, his government faces an existential challenge at next month’s state election.
Hakim is hoping for a continuation of what he’s described as largely bipartisan support for his organisation’s reproductive rights advocacy over the past decade. “It isn’t a political conversation; it should be a health conversation,” he says.