Lot’s <strong>Wife</strong> • <strong>Edition</strong> <strong>Five</strong> For Our Eyes Only The Balance between National Security and Press Freedom is Tipping Dangerously Toward Secrecy Words by Greg Hunt Democracy, so say the political theorists, is predicated on a lively Fourth Estate acting as a critical watchdog of government. The free press, in holding elected officials accountable to the public they represent, is the cornerstone and lynchpin of free society. That’s the theory, anyway. In Australia, the practice is quite different. In Australia, the free press is under threat. First, some context. Dominating the headlines in September was the news that Cheng Lei, an Australian-Chinese reporter at CGTN, had been detained by Chinese authorities. Furore also erupted when Hong Kong police raided the offices of Apple Daily and detained Jimmy Lai, a notorious Beijing critic, in August. These events give us cause to reflect on the fact that the same kind of nebulous charges that justified these crackdowns – undermining national security – were invoked right here in Australia only last year to justify the well-publicised AFP raids on Annika Smethurst’s home and the offices of the ABC. What we also learned last week was confirmation by AFP Commissioner Reece Kershaw, under questioning from Senator Hanson-Young in a Senate inquiry into press freedom, that Dan Oakes, whose reporting along with Sam Clark on the Afghan Files triggered the ABC raid, may still face prosecution. That’s worth repeating. A journalist, on home soil, faces the prospect of going to jail for doing his job. This is at a time when at least four individuals – Witness K, Bernard Collaery, Richard Boyle and David McBride – face lengthy jail sentences for blowing the whistle. Never mind that the public has a right to know about serious allegations of war crimes committed by Australian SAS soldiers in Afghanistan, or plans to extend to the Australian Signals Directorate NSA-like powers to spy on domestic populations, or rorting of the ATO, or that Australian intelligence agents bugged Timor-Leste officials to get leverage in 2004 treaty negotiations. In the eyes of the government, what matters is that whistle-blowers and journalists are not above the law and that their conduct was illegal. Perhaps this attitude from our politicians explains why Australia slid five5 places in the World Press Freedom Index this year (now ranked 26 th ). How did it come to this? In the wake of the 9/11 terror attacks and Bali bombings, politicians came under increased political pressure to fortify national security. Since 2001, in a climate of “convenient bipartisanship”, an estimated 85 pieces of National Security legislation have been introduced (an average of one law every three months for 20 years). This has led to a proliferation of “secrecy laws”: sweeping provisions that impose harsh penalties for sharing or receiving “unauthorised information”. In 2009, the Human Rights Law Commission identified 506 such laws. Examples include Section 35P of the ASIO Act (1979) and Section 122 of the Criminal Code (1995). Australia’s burgeoning national security legislation makes it one of the most secretive democracies in the world, even among the <strong>Five</strong> Eyes nations. Arcana Imperii These laws, we are told, exist to keep us safe. They are necessary to combat terrorism, foreign interference and espionage. Whatever the spirit of these secrecy laws, the problem is that they are being used by politicians to intimidate journalists and whistle-blowers. And this is having a chilling effect on legitimate public interest journalism. Not only does a journalist risk going to jail for merely receiving government secrets, but the authorities can use these laws to secretly obtain Journalist Information Warrants (JIW). These grant them access to a journalist’s metadata for the purposes of identifying their sources. This may mean that, with whistle-blowers deterred from leaking to journalists, important stories may never make it into the public domain. While internal avenues for reporting wrongdoing in public administration do exist (such as the Commonwealth Ombudsman or the Inspector- General departments), there is no requirement that investigations be made public, and genuine complaints can be easily be brushed aside as opposition to genuine government “policy”. The reason we ought to be worried about all this is that the culture of secrecy increases the risk that politicians can use sweeping secrecy laws to conceal or cover up corruption, maladministration or abuse of power. Let the Watchdog off its leash Power, as Lord Acton’s adage reminds us, can corrupt those who wield it. It is for this reason that the unfettered kind of power afforded to our elected politicians by secrecy laws, justified under the pretext of safeguarding national security and keeping us safe, is problematic. Designed to conceal from public scrutiny the inner workings of government, the exercise of these powers should be subject to oversight. This is why the scrutiny afforded by “accountability journalism” becomes so vital: press freedom acts as a bulwark to guard against abuse of office. Instead, probing into government secrets – even when it’s done in the public interest to expose illegality or wrongdoing – has effectively been criminalised in this country. Of course, balancing secrecy and transparency in government is a delicate act. Certain types of information, like operational details about military or intelligence activities that would risk harm or death to individuals if made public, should be strictly off-limits. But the police raids last year highlighted what some academics have been saying for years: that Australia is on its way to becoming a quasipolice state. To restore public trust, we need a new regime of openness and transparency that enshrines the special place of watchdog journalism in our society. The paradigm shift will take time, but legislating an express public interest disclosure exemption (rather than defence) for journalists and whistle-blowers in respect to secrecy laws, and introducing a UK-style contestable warrant system, would be good places to start. It is a cliché to say that democracy dies in darkness. But without reform, our government risks being shrouded in secrecy. And this is a bad thing for democracy. 50
Lot’s <strong>Wife</strong> • <strong>Edition</strong> <strong>Five</strong> Art by Shrusti Mohanty 51