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.