Criminalising journalism?

In December last year, Home Affairs Minister Clare O’Neil flagged that an overhaul of the country’s counter-terrorism laws would better target the threat of right-wing extremism and neo-Nazism in Australia.

Last month, the review of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 was commenced, after Prime Minister Anthony Albanese said there was a need to address a gap in existing law. Currently, the law criminalises the accessing of violent extremist material only if it is done for or in connection with a planned terrorist act.

However, with the government seeking to broaden its powers through the proposed amendment, new offences may be introduced for accessing or transmitting violent extremist material using a carriage service, or for possessing or controlling such material.

This is likely to significantly impact journalists reporting on far-right and other violent extremism in the country. 

The news media play a crucial role in keeping the Australian public well informed when it comes to issues related to terrorism and violent extremism; and the possession of extremist material is sometimes unavoidable in, and even necessary for, news gathering and reporting on such matters.

The bill includes a defence for professional journalists who access or possess violent extremist material if the material relates to a news or current affairs report that is in the public interest. However, Australia’s Right to Know (ARTK), a coalition of leading media organisations, argue in their submission (no. 125) to the bill that the defence places the burden of proof on journalists, exposing them to prosecution and imprisonment for 5 years for doing their job. And since the defence applies only to journalists, it also exposes administrative staff to prosecution.

Instead, ARTK has proposed an exception to the offence where these extremist materials are used for journalism, particularly seeking changes to clauses 474.45B and 474.45C of schedule 2 to the bill. This would place the burden of proof on the prosecution, and make schedule 2 consistent with the wording of clause 80.2H, which relates to the display of prohibited symbols. ARTK also propose extending the exception to administrative staff and removing the need for the material to be connected to a news or current affairs report – instead requiring only that a person be engaged in journalism.

The committee is now reviewing the 150 submissions and the first public hearing is scheduled for 1 September 2023.

Ayesha Jehangir, CMT Postdoctoral Fellow