Journalists at foreign-owned outlets in Australia could face jail for exposing ADF war crimes, paper suggests

<span>Photograph: Mick Tsikas/AAP</span>
Photograph: Mick Tsikas/AAP

Journalists working for foreign-owned outlets could face jail under Australia’s foreign interference laws for exposing defence force war crimes or misuse of surveillance powers, a new paper has warned.

The broadly worded laws “have the capacity to criminalise legitimate journalism” and should be amended to protect public interest reporting, according to a press freedom policy paper published by the University of Queensland (UQ).

Thursday’s paper states current laws could be used to target journalists because the offences include “covert” conduct on behalf of a foreign principal that might influence Australian politics or prejudice national security.

Recklessly doing so can attract a jail term of up to 15 years, while intentionally doing so carries a maximum sentence of 20 years.

The author of the policy paper, Sarah Kendall, said state-linked outlets that could meet the definition of a foreign principal include Al Jazeera (Qatar), RNZ (New Zealand) and Voice of America (US), France 24, and Chinese and Russian state-owned media.

BBC is probably exempt because of its licence fees structure. A foreign principal includes “an entity or organisation owned, directed or controlled” by a foreign government body.

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“Prejudice could mean anything from harming Australia to making Australia look bad (beyond mere embarrassment) on the international stage,” Kendall said in her analysis of the foreign interference laws.

“A journalist could recklessly prejudice national security when they publish a story that reveals war crimes by members of the Australian defence force, or that Five Eyes nations’ intelligence agencies have been misusing their surveillance powers.”

Kendall, a PhD candidate and sessional academic at UQ’s law school, researches national security, evidence law, and criminal law and procedure.

In the paper she said the fault element of the legislation, first introduced by the Turnbull government in 2018, “broadens the scope of the foreign interference offences beyond interference to more general harms to Australia’s national security”.

“Whenever journalists liaise with confidential sources (such as whistleblowers) or use encrypted technologies (such as Signal) to communicate with sources and maintain the secrecy of certain documents, this could be covert conduct,” she said.

“A journalist could also be acting covertly or deceptively when they use hidden cameras or engage in undercover work.”

Kendall said to meet the test of either intentional or reckless foreign interference, “any part of the person’s conduct could be covert or deceptive – it does not need to be related to the elements of a foreign interference offence”.

“The deception could be unrelated to the person’s relationship with a foreign principal or their intentions (for example, to influence a governmental process),” she said.

“Ultimately, a wide range of legitimate (covert) journalistic activities may involve intentional or reckless political influence or prejudice to Australia’s national security.”

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The paper said national security has been defined broadly in the criminal code.

It goes beyond the defence of the country and protection of the country from serious threats to also include the country’s “political, military or economic relations with another country”.

“This essentially draws international relations within the meaning of national security,” Kendall said.

The policy paper called for the foreign interference offences to be narrowed in scope and for a change in the coverage of preparatory offences.

It recommended the creation of a journalism-based exemption to protect legitimate, good faith journalism, while ensuring genuine acts of foreign interference are criminalised.

The paper suggested an exemption could be modelled on a defence to the general secrecy offence, protecting professional and nonprofessional journalists reporting on matters of public interest.

This proposed defence would not apply when activities are done to assist foreign intelligence agencies or military organisations.