Sunday 28 September 2014

Why News Limited is too embarrassed to properly cover new counter-terrorism laws

Democracy is threatened by the constraints on the media.

I can't claim ownership of this sanctimonious motherhood statement.  It was the opening line of an editorial in The Australian on 6 November 2007 just before the Federal election of that year.

It went on to proclaim: "When it comes to media freedom, it should be second to none."

No qualifications. No caveats. Media freedom trumps everything else.

Now some may disagree with this proposition. This Government does. The last Government did. The security agencies do and so do many public servants. So do I as it happens; in western democracies no rights are absolute. A balancing of rights is required when they come into competition, as they often do. Similarly, in limited situations, the public interest in good government decision making and public safety may take precedence over the public interest in full transparency.

However, it is not the purpose of this piece to have an academic argument about press freedom. Rather, it is to highlight the rank hypocrisy of News Limited papers in recent weeks in the debate over new national security laws and also the breadth of those laws in relation to the press.

Between 2007 and 2013, News Limited papers used the club of press freedom to batter Labor governments: freedom of Information, privacy laws, media regulation, court suppression orders, journalist shield etc etc.

So I was surprised to read the editorial of The Australian this week with the headline "Terror laws protect unity rather than undermine it".

"GNASHING of teeth about anti-terror measures disrupting social cohesion is often misplaced and overblown.....  As reported today, we now know Islamic State spokesman Abu Mohammed al-Adnani has called on followers to unleash violence against this nation. We need not be apologetic that thwarting this goal should remain our top priority.

How times have changed. Seven years ago, media freedom was second to none. Now preventing "violence against this nation" trumps everything. In another editorial by the paper last week it became clear that The Australian was now on board with the Prime Minister’s argument that certain rights had to be traded off to keep the community safe.

"So far the extended powers proposed by the Abbott government seem to strike a reasonable balance between its obligations to keep the community safe and preserve its freedoms."

Of course, times change; not least the view of News Limited papers about who the real enemies are. In this case, it is not supporters of ISIL. Rather, the Australian has in its sights those on the left that are critical with the scope of the laws. Just like everything else in recent years, this debate gets transformed into the one-dimensional culture war that fascinates News Ltd, particularly in the offices of the editors in Holt Street in Sydney and Bowen Hills in Brisbane, but no-one else.  In this culture war - on the left and right - critical thought goes out the window. That becomes much clearer from the editorial last week in the Daily Tele - "Denial won't stop this evil madness".

"MANY on the political Left, particularly from the ABC, have either dismissed or downplayed the threat of terrorism since Australia’s terror alert level was increased in recent weeks."

"To give one example, former ABC Media Watch host Jonathan Holmes complained t this week about “more and more laws to stop terrorists” while there were “fewer and fewer measures to limit greenhouse gas emissions. And of course, no carbon price”."

In three sentences, the paper managed to pull together their culture war hobby-horses: the ABC, climate change, the political left and terrorism.

I won't bore readers any more with this predictable diatribe; in most part because I will lose most of you who will have already have switched to something more interesting.

However, there is an interesting back story to these new laws that I was a part of that not only help explain their provisions but also make the acquiescence of News Limited papers even more galling.

Let me take you back to July 2009 and the high profile anti-terrorism operation Operation Neath that captured headlines at the time. At that time I was working as an adviser for the then Attorney-General Robert McClelland. Our attention had been consumed by the National Labor Conference - Kevin Rudd had gone AWOL  and the Labor delegates at Darling Harbour were at each others throats over gay marriage and parallel import arrangements for books. 

Mid-afternoon during one of the days of the conference a call through from McClelland's media advisor informing us that a journalist from The Australian had found out that raids would be conducted in coming days on suspects houses as part of Operation Neath. The journalist had called him and was proposing to go to press the next day. I am not breaking any confidences or committing any offence in telling this story because the events were subsequently canvassed in the Melbourne Magistrates Court.

The concern of the AFP and McClelland at the time was that the publication of the information about the raids ahead of time would compromise them by tipping off the suspects. Over the coming hours, the media advisor and other government officials begged, cajoled and pleaded with the journalist to hold off from publishing the story. But he wouldn't be swayed, nor would his pugilistic editor Paul "Boris" Whittaker - now editor of the Daily Telegraph - who aggressively asserted the right of the free press to publish the story.

Late that evening, it was only after Boris and Chris Mitchell demanded and received a commitment from McClelland that his paper be given the exclusive about the details of the raid after it was conducted, that he agreed to hold the story. Security and law enforcement agencies were furious but they had little choice but to agree in order to prevent the publication of the story. And so The Australian got its inside story.

So it is no surprise that those agencies pushed hard for new provisions in the Australian Security Intelligence Organisation Act 1979 to prevent such an incident occurring again. Yet with the Daily Telegraph and Boris Whittaker on the morphine drip of stories from the Abbott Government, it is also no surprise their tune has changed. Or maybe they are just embarrassed they are the cause of the new laws.

There have been some fine pieces recently written by Katherine Murphy in The Guardian and Laurie Oakes (notably in the News Limited papers) about the failure of most of the media to cast a critical eye over the laws. They are strong reminders that it is not the role of journalists to be a cheer squad for government, opposition or any other cause. It is to question, probe and challenge those in authority. I like Murphy's analysis of part of the problem-

"Any objective look at the week would present a report card that said: running too fast, filing too much, revealing too little."

Among Murphy's and Oakes' principal concerns is Schedule 3 of National Security Legislation Amendment Bill (No. 1) 2014 dealing with so-called "special intelligence operations". Authority to launch such operations can be granted if the Attorney-General (originally the Director-General or deputy D-G of ASIO but the Government amended their Bill in the Senate) is satisfied on reasonable grounds of a number of factors including:

·       the special intelligence operation will assist the Organisation in the performance of one or more special intelligence functions;
·       the circumstances are such as to justify the conduct of a special intelligence operation;
·       any unlawful conduct involved in conducting the special  intelligence operation will be limited to the maximum extent consistent with conducting an effective special intelligence operation.

Clearly, it’s all pretty general and vague, leaving a great deal of discretion to the decision maker. And once permission has been given for such an operation the new laws provide for heightened protection of the special intelligence operation, including a new offence of "Unauthorised disclosure of information". Under a new s. 35P of the ASIO Act a journalist would commit an offence if they disclose information and the information “relates” to a special intelligence operation.

Again it is the broadness of the provision that is problematic. The offence simply requires that the disclosed information relates to a special intelligence operation. The conduct giving rise to the offence it is not time limited and indeed could occur after an operation has finished. It also extends to operations conducted overseas. Further, those found guilty under the provision face higher jail terms of up to 10 years if "the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation".

The meaning of the term "prejudice the effective conduct" is in the eye of the beholder and the journalist bears the onus of proving that they fall within one of the exceptions to the offence provision. 

Once again, the actions of News Limited have made it harder for all journalists.


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