Mark Kenny | Press freedom needs more champions if democracy is to survive

A polite swipe at the PLA landed one comedian, whose stage name is House, with a staggering US$2 million fine according to CNN, despite a grovelling apology and a promise to re-educate himself.

Following a 2021 law which made it an offence to insult the military, House is now under what appears to be indefinite house arrest.

Other stand-ups have been sat down, their names erased from state-controlled social media platforms meaning that just by reading this, you probably know more about this process than most Chinese.

Except in the case of the over-egged national security excuse, silencing critics is itself illegal in western democracies like Australia, where exposing government failures and laughing at leaders, is common.

A free, vigorous and diverse news media is central to this.

The ill-advised defamation action by Australia's most decorated and now disgraced former war hero, Ben Roberts-Smith, brought this difference sharply into focus last week.

As did the PwC scandal, a cascading breach-of-trust saga which goes not just to an unethical culture at the consulting giant, but to shortcomings within Australia's enfeebled public service.

In both crises, principled whistle-blowing and fearless journalism undertaken by a media sector free from government influence overcame official secrecy to expose wrongdoing.

The 2018 stories of serious war crimes in Afghanistan reported by this and other mastheads went directly to the unchallenged reputation of the decorated Victoria Cross recipient, and laid bare the battlefield lawlessness and hyper-violent culture of Australia's most elite combat forces.

The confronting stories relied on well-corroborated sources comprising members of the Special Air Services regiment itself and Afghan civilians, all of whom testified to unconscionable acts of violence by Roberts-Smith and others.

Yet such was the cultural power of the Roberts-Smith/SAS legend, and the financial resources it attracted, that defeating the legal challenge was no certainty for the respondent journalists and their employers.

In essence what got them through was the quality of the journalism to begin with. Justice Anthony Besanko heard first-hand what Nick McKenzie and Chris Masters had heard when compiling their bombshell reports.

In a very real sense, the future of Australian journalism as a viable enterprise was on trial in this case.

Despite its claims to robust liberal democratic accountability, Australia is hardly a friendly place to undertake high-stakes journalism. Long lead times, statutory penalties for whistle blowers, and the legal-financial risks for media, have a deliberately chilling effect.

Australian courts have tended to find against media also, often concluding with a surfeit of sympathy, that a given public figure has suffered hurt feelings, and observable reputational damage.

Of course both things are almost always present but that does not make a story contrary to the public interest, wrong as a matter of fact, nor motivated by malice. As this latest case proves with stunning clarity, the reputation of Australia's most recognised living war veteran has been torched.

Yet this story was undeniably necessary, because, as the court concluded, it was both grave and true.

Ruling it defamatory on the grounds of the harm it did to a war hero's undeserved standing would have had sent a serious signal to journalists to steer clear of future investigations.

In any event, plaintiff-favourable courts are not the only risks to weigh in deciding whether to publish. Australia simply lacks other legal protections for reporters and their informants.

Think back to the winter of 2019 when the Australian Federal Police raided the Canberra home of journalist Annika Smethurst and the Sydney headquarters of the ABC. Those raids were leak-hunts. And they were clearly intimidatory.

Academics, Rebecca Ananian-Welsh (QUT) and Jason Bosland (Melbourne University) argue they "illustrate a point of disturbing Australian exceptionalism".

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The law professors note that gaining search and seizure warrants simply requires a procedural application before a magistrate or Justice of the Peace, who needs merely to be satisfied of reasonable grounds to suspect criminal material may be present.

"Across Australia, journalists and media organisations are afforded no special legal protection against the issue of search warrants," they write. "This sets Australia apart within the 'Five Eyes' partnership ... In NZ, the US, the UK, and Canada, clear statutory and common law safeguards protect press freedom by limiting circumstances in which warrants may be issued and executed against journalists and media organisations."

In its March submission to the Australian Communications and Media Authority, the Public Interest Journalism Initiative (PIJI) stated that Australian news media outlets are "at cross-roads".

"PIJI, through its Australian News Mapping Project, has demonstrated the stresses and challenges facing news media outlets that has resulted in over 400 changes in three years and a net loss of 121 news outlets," the body said.

PIJI described this attrition as "a sharp acceleration" from the previous 10-year period to 2018 in which there were 106.

Thanks to the Ben Roberts-Smith story, Australians know that not everything done "under our flag and in our uniform" is always honourable.

And, they know also who was implicated in at least four of the 39 unlawful Afghan killings attributed to Australian soldiers by Major-General Paul Brereton in his confidential investigation for the Inspector-General of the Australian Defence Force.

Uncomfortable. Confronting. Regrettably true.