Monday 26th of September 2022

treated like common criminals for telling the truth...


There's a dangerous twist in the prosecution of the ABC whistleblower

The AFP is trying to use a law that nobody has ever thought concerned government secrets to criminalise ordinary journalism.

  • Today, 12.00am
  • by Jonathan Holmes

whether the government goofs or not, we need to know...

Published on 25 December 2009. Last modified on 7 October 2015.
Criminal law and processFreedom of informationIndigenousPrivacyRoyal Commissions & public inquiriesSecrecyWhistleblowing

Secrecy laws that impose obligations of confidentiality on individuals handling government information—and the prosecution of public servants for the unauthorised disclosure of such information—can sit uneasily with the Australian Government’s commitment to open and accountable government. Secrecy laws have also drawn sustained criticism on the basis that they unreasonably interfere with the right to freedom of expression.

On 5 August 2008, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission to conduct an Inquiry into options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government by providing appropriate access to information. (See Terms of Reference.) The lack of consistency in secrecy provisions has been identified in a number of prior reviews, leading up to and prompting this Inquiry—including three prior reviews by the ALRC:

The ALRC was also asked to consider the increased need to share information within and between governments and with the private sector.


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pushing turds back up the river of freedom...

It’s been a week for rights and freedoms in politics. Christian Porter, at the Great Synagogue in Sydney, finally unveiled the government’s much anticipated religious discrimination bill – providing his response to an internal campaign from colleagues to enhance religious freedom that will now be superseded by an external campaign from religious, civil society and LGBTQI groups.

On the same day, in another part of the city, heavy hitters from the legal and media worlds, including the new chair of the ABC, Ita Buttrose, caucused to try and advance the cause of press freedom. Now, obviously, Porter has a substantial workload, and any minister would have been hard pressed to front two time-consuming events on the same day, but the attorney general’s presence for one, and his absence from another, seemed to speak volumes about the order of priority for the Morrison government.

The media event was a summit put on by the Alliance for Journalists’ Freedom – a group put together by the television journalist Peter Greste, who was imprisoned in Egypt while working for al-Jazeera. A number of proposals were chewed over during the day: a new Media Freedom Act, the potential for constitutional change, as well as a wish list of practical measures pushing back on the creeping culture of government secrecy. The more modest wish list of reforms is being championed by media companies in the wake of police raids on the ABC and the home of News Corp political journalist Annika Smethurst.

Asked about the police raids, Buttrose expressed the view the government was fully intent on intimidating whistleblowers, and the strategy was working. She noted the ABC had lost a couple of stories in recent times because potential whistleblowers had balked, concerned about the consequences.

She was also strongly of the view that Australians would rally to the cause of journalists and journalism and media freedom if the profession was prepared to engage with audiences, show them the value of what we do, and explain what was at stake.

Bret Walker, the prominent silk, invited to give the keynote about Australia’s culture of secrecy, offered the necessary corrective to any journalistic hubris, noting at one point: “I honestly don’t think we should get sentimental about a caste of people called journalists.” He contended what distinguished journalists from others was the profession took the risk of being wrong, and carried the risk of being punished by authorities. To soften the blow perhaps, he noted he “saluted” the profession for taking these risks.

In any case, back to Buttrose and the public rushing to journalism’s defence. It would be heartening for me if her instinct was right. Perhaps it is true for her own organisation, the national broadcaster, which does tend to rank more highly than other news properties in public polling about trust.

The latest Guardian Essential polling in June found a majority of people surveyed had at least some trust in SBS TV news (60%) and ABC radio news (57%), while none of the other sources gained above 50%.

More broadly, research would suggest readers and viewers don’t love what they currently consume. A couple of general perceptions. Australians are becoming less interested in news, with 62% of respondents in the latest annual Digital Media Report from the University of Canberra in collaboration with the Reuters Institute and the University of Oxford saying they avoid consuming it occasionally, sometimes or often.


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News organisations have been slow to respond to the tide of legislation that progressively and surely threatens their ability to report the affairs of state.

Indeed, some media outlets have a history of cheering on the rampant growth of national security laws, as though the mantra of government was more important than their ability to unearth the truth.

There was an eerie sense of a police state when images emerged of the AFP entering the ABC in Sydney and demanding access to the corporation’s files on sensitive news reports. Only days earlier the police had been rifling through the Canberra home of News Corp journalist Annika Smethurst. It prompted a heightened concern about the cankered state in which the “free press” finds itself.

Calls for a special independent inquiry into how security laws impinge on a free press were headed off by the government to the parliamentary joint committee on intelligence and security. The reporting date is 17 October. The inquiry could well overlap with work under way by the Senate environment and communications references committee looking into “the adequacy of commonwealth laws and frameworks covering the disclosure and reporting of sensitive and classified information”.

The most significant laws that have an adverse impact on journalism and how it functions can be divided into those that block access to information; those that criminalise dealing with and publishing information about the state; and those that enable the state to track and monitor the work of journalists.

What we find is a maze of enactments, dizzying in their complexity and uncertainty. The definition of national security is unsettled, the defences few and in most instances worthless, while the penalties for transgression are severe.

To better understand the enormity of what is at stake it is important to drill into these laws and identify the pitfalls facing a “free press”, which in an ideal world is supposed to be as vital a component of a liberal democracy as parliamentary elections, an independent judiciary and a professional public service.

Stuff that is off limits to the media

Where, in a criminal or civil trial, issues arise relating to national security information, the National Security information (Criminal And Civil Proceedings) Act 2004 asks the courts to go into cloak and dagger mode.

The government can address the court about how it should deal with any national security information before it. This hearing itself must be in camera and, after the parties are heard, the court may make an order to hear the case in closed session and it only need publish its reasons to the parties and the attorney general.

Witnesses can be compelled to silence or excluded from proceedings and evidence suppressed.

Reporting these cases is an impossibility. All offences under the act carry two-year jail terms.

We’re seeing an example of this suppression and secrecy playing out now in the commonwealth’s case against Bernard Collaery, a Canberra lawyer accused of leaking information about the Australian’s government clandestine and illegal bugging of the Timor-Leste ministerial offices.


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and you pay for it...

The Attorney-General and the Australian Federal Police spent more than $600,000 of taxpayers’ money on external lawyers in a High Court case against journalist Annika Smethurst related to her report on a secret government proposal to expand domestic intelligence activities.

The AFP spent $401,250 on legal services fighting Smethurst in court, while the Attorney-General’s department spent a further $207,870 on an intervention by Christian Porter, who tried to block attempts to destroy material that may be used for future prosecution.

The sums were revealed in answers to questions on notice from Senator Rex Patrick at budget estimates. It is likely significant internal costs were incurred during the process but these were not disclosed in the responses.

Smethurst’s home was raided in June last year over an April 2018 story revealing a proposal to empower the Australian Signals Directorate to collect intelligence domestically.

Smethurst, who will join The Age as state political editor next year, successfully won a High Court challenge against the search warrant, with the court finding the actions were unlawful on technical grounds.

The ruling also required the AFP to pay News Corp and Smethurst’s legal costs, a figure which is estimated to be similar to the external costs disclosed in responses to the Senate. It was unclear whether the total amount disclosed in the responses includes these payments.

Senator Patrick said the court case was a waste of taxpayer money. ‘‘The investigation should never have started. The raid should have never occurred. The matter should never have been before the courts,’’ he said.

‘‘Public resources and more than half a million dollars of taxpayers money has been wasted in what was clearly just an attempt by the government to intimidate journalists and stifle media reporting. The only officials who might think this is money well spent are those that are fundamentally opposed to freedom of the press.’’

The AFP said in May that it would not pursue charges against Smethurst or her suspected source over the story despite raiding her home on the basis of criminal laws that concerned the unauthorised communication or released of official secrets.

Earlier this year, in the Federal Court, the ABC fought a separate raid regarding a series of stories about alleged war crimes. However, the search warrant was deemed legally valid, a decision which prompted calls for better laws to protect journalists’ sources.

The raids on Smethurst and the ABC also led to a parliamentary inquiry into press freedom. Its report showed Coalition and Labor MPs backed changes to Australia’s search warrant regime to allow applications by agencies for warrants against journalists and media firms to be contested.



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SMH 20/12/2020



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