We Need to Talk: Press Freedom and The Law – vol 1

with Tess McGuire

Welcome to We Need to Talk, an interview series about media law brought to you by the Film, Art, Media and Entertainment (FAME) Law Students’ Association and the Communications Portfolio of the LSS.

COVID-19 has disrupted our plans to host a panel discussion for students on the current state of press freedom in Australia. To tide you over until that event can be rescheduled (keep an eye out on facebook!), we have collaborated with a few of the brilliant minds slated for the original panel to create a series of in-depth interviews that students can enjoy while in isolation. In this series, our panelists will discuss the state of our democracy and the welfare of our human rights under the current national media regulation regime.

Media has never been more important, or more volatile – journalists of all schools stand in a position of great power, and with it great scrutiny from both readers and publishers alike. In a world where the ABC is raided by the AFP, disinformation spreads like wildfire, and tracking apps are no longer the stuff of dystopian conjecture – the intersection between democracy and the media is of utmost interest. At least, we think it is.

Throughout the remainder of Semester One, we will share interviews with media experts from different paths to not only discuss current issues in the law, but also to provide some insight on how their careers took off!

First up, we have Tess McGuire, a recent MLS alumna working at MinterEllison, who has unique insight into the fascinating world of media law – read on to learn all about it. We hope you enjoy this interview and make sure you keep your eyes peeled for the next one!

Stay well!

Peter Turner, Coco Garner Davis, Georgia Barendse and Georgia Zheng

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Tess sat down with Georgia Barendse for Purely Dicta, to talk about what drew her to media law, her experience in the industry, and her top tips for students to land a job in an area they’re passionate about.

Thanks for taking the time to answer some questions, Tess. Let’s get straight into it – can you tell us about your experiences ‘post-MLS’?

Thank you for having me! After finishing up at MLS, I started as a graduate at MinterEllison in March 2019. My first six-month rotation was in the Media Law team, and then I was lucky enough to go on secondment to the Human Rights Law Centre for six months. I was admitted as a lawyer in December, and now I’m back at Minters, doing my third rotation in the Corporate M&A team. 

When did you first become interested in media law; what made you decide to rotate through MinterEllison’s media practice group?

I actually considered pursuing journalism for a while and studied media and communications as one of my undergrad majors, so the media landscape has always been of interest. I then studied the media law elective in my final year – which I loved – and when I clerked at Minters I was able to chat to a few people in the team who gave me an insight into the type of work they do. It’s a small but dynamic and pretty brilliant team that defend the media in some of the most significant defamation cases in the country. 

You then were seconded to Human Rights Law Centre – can you tell us about your experience there?

It was a truly unique, educational and inspiring experience. Because of my media law background and political experience, I was recruited to the Democratic Freedoms team but also took up opportunities to work with the Aboriginal and Torres Strait Islander Rights team and in the Business and Human Rights space. 

One of the highlights of my Dem Freedoms work was appearing before the Parliamentary Joint Committee on Intelligence and Security in their hearing into the metadata law regime. In particular, I responded to questions on the inadequacies of safeguards in place to protect people’s data, and the journalist information warrant scheme. I appeared alongside an incredible senior lawyer, and our weeks of preparation really came to the fore when we could respond with comprehensive, evidence-based answers to each of the probing politicians’ questions. I know I sound ‘nerdy’, but it was genuinely thrilling! 

Working at the HRLC was particularly meaningful for me because I’ve never been a person who accepts that the status-quo version of our state of affairs is good enough.  That’s the ethos of the HRLC, that through strategic advocacy and litigation, they seek to achieve reforms that reduce inequality and injustice. The experience also allowed me to appreciate and understand ‘creative lawyering’ – how to deploy different tools and challenge the standard methods within our legal framework to achieve powerful outcomes. 

Can you share with us some of the major matters that you have worked on? What are the topical stories that you think our community should be paying the most attention to?

There’s one example that satisfies both criteria – the allegation that at least one Australian soldier committed war crimes in Afghanistan.  It is very public knowledge that Victoria Cross recipient, Ben Roberts-Smith is suing Fairfax (now Nine) newspapers, and the investigative journalists who have levelled accusations in their reporting. This defamation case will be a very significant test of both the law and factual evidence involved, and was one of the major matters I worked on during my time in the Media team. 

In terms of other topical stories, I think that is a very interesting question to pose at this time, as I am concerned there are stories that would be significant news that are not being heard in these pandemic conditions. At the same time, it has been encouraging to see many journalists try to shine a light on how coronavirus is disproportionately impacting those sections of our community that were already marginalised, particularly Aboriginal and Torres Strait Islander peoples, people with disabilities, and women and children experiencing family violence. 

How would you describe the intersection between your human rights experience and your media law practice?

Press freedom is both a human rights issue and a media law issue. It was the topic of significant discussion last year, particularly following the AFP raids. Those raids brought to light the over-reaching nature of some of our ‘secrecy and espionage’ offence provisions, and how they have the potential to stifle the free flow of information that may expose government misconduct. The freedom for whistleblowers to come forward without fear of persecution is essential to a functioning democracy. More broadly, I think it also highlights the imperative to implement a national charter of human rights and freedoms – Australia being the only Western democracy without one.

Now for the heavy-hitters! You’ve spent a significant amount of time in the United States, what are your observations on the broader issues of media freedoms and political communication?

Heavy-hitter indeed! So, I studied political communication at George Washington University in 2014 when Obama was President. I returned to D.C. four years later, to work for the House Judiciary Committee Democrats in Congress, with Trump as President. I think it’s fair to say that the standards of what was acceptable, ethical, political communication had been completely dismantled. 

When I was there, Special Counsel Robert Mueller was investigating Russian interference in the 2016 election – or as President Trump would call it, conducting a ‘Witch-Hunt’. The inconvenient truth is that President Trump’s style of communication – a constant barrage of tweets dismissing and diminishing the revelations that came out of the Russia investigation– were actually quite effective. No matter how many people came forward or what Mueller concluded in his Report, it had become so divisive that whether you accepted the factual account or not was based on party lines. 

The telling outcome of this is that although the Russia investigation contributed to the lead up to impeachment, it did not actually underpin the impeachment articles. Instead, it was President Trump’s completely separate conduct in pressuring the President of Ukraine to dig up damaging information on former Vice President Joe Biden. But again, even though he was impeached by the Democratic majority in the House, he was acquitted by the Republican majority Senate. This was achieved through a combination of undermining the media as being ‘Fake News’ and doggedly attacking and denying any allegation of wrongdoing, making it incredibly difficult for both journalists and those in Congress, to hold the President accountable.  

What can you tell us about the policy and law reform ideas that you’ve developed during your time in practice?

We’d be here all day if I listed all of them, but one of the key issues that the Media Law team advocates for is reforming our defamation laws. They are notoriously pro-plaintiff, to the extent that Australia is now being referred to as the ‘defamation capital of the world’ with twice as many claims as the United Kingdom despite having well under half its population. This is also a press freedom issue because the looming threat of a defamation law suit has a chilling effect on the stories that end up being published. 

As mentioned, one of the key issues I worked on at the HRLC was the metadata regime – advocating key reforms such as requiring a warrant before agencies can access metadata, and prohibiting access to journalist and public interest whistleblower metadata, except in limited circumstances. We put these to the Parliamentary Committee and argued they were necessary changes to ensure our democratic rights and freedoms are adequately safeguarded. 

And, finally, MLS students are always keen to hear advice from recent graduates – do you have any tips on how to work in areas you’re passionate about early in your career?

If you know you’re passionate about something, pursue it from the get-go, and speak to as many people working in that area as possible. Something I also did was use my electives to get a taste for the areas of law I was interested in to see what they are like in theory – but it’s important to note that learning the theory of law is very different to practicing, which is why I think having conversations with people is one of the best things you can do, and if anyone wants to reach out I’m more than happy to have a chat.

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We hope you enjoyed the first installment of We Need to Talk, an interview series by FAME and LSS Communications. Thank you to Andrew Udovenya and Chris Girardi for helping us bring this idea to life and to Delinna Ding for her amazing graphics. Keep your eyes on Purely Dicta for the next installment featuring Dr Matt Collins AM QC!