Fed­eral war on news, truth

The Saturday Paper - - Front Page -

As the gov­ern­ment looks for easy votes in na­tional se­cu­rity, clumsy leg­is­la­tion finds an un­ex­pected enemy in the News Corp tabloids. By Mike Sec­combe.

In­tro­duc­ing his gov­ern­ment’s pro­posed anti-es­pi­onage leg­is­la­tion on De­cem­ber 7, Mal­colm Turn­bull could not re­sist a lit­er­ary flour­ish.

The prime min­is­ter in­voked Ge­orge Or­well’s book 1984, sug­gest­ing its “dark prophecy” of “a post-truth dystopia” loomed un­com­fort­ably close.

Turn­bull de­tailed a grim pic­ture of the threats posed to global democ­ra­cies, in­clud­ing ours, by ma­lign for­eign pow­ers such as Rus­sia, China, North Ko­rea and Iran.

“Me­dia re­ports have sug­gested that the Chi­nese Com­mu­nist Party has been work­ing to covertly in­ter­fere with our me­dia, our uni­ver­si­ties and even the de­ci­sions of elected rep­re­sen­ta­tives right here in this build­ing,” he said.

“There are cred­i­ble re­ports that Rus­sia was ac­tively un­der­min­ing the in­tegrity of the Brexit ref­er­en­dum, this year’s pres­i­den­tial elec­tions in France and last year’s pres­i­den­tial elec­tion in the United States ...

“Rus­sian agents seek­ing to sow dis­cord in the United States reached

126 mil­lion users on Face­book, pub­lished more than 131,000 mes­sages on Twit­ter and up­loaded over 1000 videos to YouTube, ac­cord­ing to the be­lated ad­mis­sions from those plat­forms.”

The ca­pac­ity of for­eign pow­ers to med­dle and dis­in­form, he said, had never been greater, now “tur­bocharged by cy­ber”.

Turn­bull laid the fear on with a trowel, cit­ing the words of for­mer US di­rec­tor of na­tional in­tel­li­gence James Clap­per, in tes­ti­mony to the Congress, that we faced “a threat to the very foun­da­tion of our demo­cratic po­lit­i­cal sys­tem”.

Most por­ten­tously of all, he quoted

Or­well again, and the im­age of a fu­ture where, “The past was erased, the era­sure was for­got­ten, the lie be­came the truth”. It was not yet our re­al­ity, he said, but no longer en­tirely fan­tasy.

Given that most of Or­well’s work as a writer was de­voted to warn­ing against to­tal­i­tar­ian ef­forts to limit free­dom of thought, ex­pres­sion and in­for­ma­tion, he was an ob­vi­ous lit­er­ary ref­er­ence for Turn­bull to make in a speech about the grow­ing will­ing­ness and ca­pa­bil­ity of au­thor­i­tar­ian states to un­der­mine our demo­cratic free­doms.

Over the suc­ceed­ing two months though, as the de­tail of the leg­is­la­tion was parsed, Turn­bull’s speech evoked Or­well in a dif­fer­ent way. It was dou­ble­s­peak. At the “very cen­tre” of the re­forms, he promised, would be sun­light, “the most re­li­able dis­in­fec­tant”. But by sun­light, he meant se­crecy. While he spoke of pro­tect­ing our demo­cratic in­sti­tu­tions, the leg­is­la­tion pro­posed rad­i­cally hob­bling them.

In par­tic­u­lar, the pro­posed laws would have hob­bled the abil­ity of the me­dia to re­port on gov­ern­ment.

One imag­ines that in his grave at

All Saint’s Church, Sut­ton Courte­nay, Ox­ford­shire, Eric Arthur Blair, who wrote un­der the name Ge­orge Or­well, was ro­tat­ing rapidly. He was, be­fore all else, a jour­nal­ist who de­voted his short­ish life to rail­ing against gov­ern­ment over­reach, both in re­al­ity and fic­tion.

It was Or­well who wrote this: “If lib­erty means any­thing at all it means the right to tell peo­ple what they do not want to hear.”

But if en­acted, the Na­tional Se­cu­rity Leg­is­la­tion Amend­ment (Es­pi­onage and For­eign In­ter­fer­ence) Bill 2017 would have had the ef­fect of pre­vent­ing the me­dia and their sources from telling peo­ple what the gov­ern­ment didn’t want them to hear. Al­most any­thing the gov­ern­ment didn’t want to hear.

That’s not me say­ing that. That was the mes­sage from a sub­mis­sion to a par­lia­men­tary in­quiry into the leg­is­la­tion – which, in­ci­den­tally, the gov­ern­ment strongly re­sisted – made by a group call­ing it­self the Joint Me­dia Or­gan­i­sa­tions, which com­prises most of the coun­try’s me­dia or­gan­i­sa­tions, in­clud­ing the ABC, SBS, News Corp, Fair­fax, free-to-air tele­vi­sion, and many oth­ers.

“The pro­posed leg­is­la­tion crim­i­nalises all steps of news re­port­ing, from gath­er­ing and re­search­ing of in­for­ma­tion to pub­li­ca­tion/ com­mu­ni­ca­tion, and ap­plies crim­i­nal risk to jour­nal­ists, other ed­i­to­rial staff and sup­port staff who know of the in­for­ma­tion that is now an of­fence to ‘deal’ with, hold and com­mu­ni­cate,” it sub­mit­ted.

It fur­ther noted that this piece of leg­is­la­tion was but the lat­est in a se­ries of pieces of na­tional se­cu­rity leg­is­la­tion that “con­tinue to un­der­mine the abil­ity of the news me­dia to re­port in the pub­lic in­ter­est”.

Their sub­mis­sion was not alone. The in­quiry heard crit­i­cism from a wide va­ri­ety of civil so­ci­ety and le­gal groups, the Hu­man Rights Com­mis­sion, and other ex­perts, in­clud­ing the for­mer In­de­pen­dent Na­tional Se­cu­rity Leg­is­la­tion Mon­i­tor, Bret Walker, SC.

There was a lot to be con­cerned about, as An­thony Whealy, QC, for­mer

New South Wales supreme court judge and chair of the COAG com­mit­tee on coun­tert­er­ror­ism laws, told The Satur­day Paper.

Whealy is now chair of Trans­parency In­ter­na­tional Aus­tralia, but is no re­flex­ive civil lib­er­tar­ian. As a judge he presided over two of Aus­tralia’s ma­jor ter­ror­ism tri­als. Through ex­pe­ri­ence with Aus­tralia’s ter­ror­ism and na­tional se­cu­rity laws, he says, he came to see that while they were “dra­co­nian … and on the face of it, se­cre­tive … could be jus­ti­fied in the cir­cum­stances”.

When Whealy ex­am­ined the se­crecy pro­vi­sions of the lat­est pro­posed se­cu­rity leg­is­la­tion, how­ever, he was “gob­s­macked”.

For a start, there were the loose def­i­ni­tions of ac­tiv­i­ties that might con­sti­tute an of­fence.

“Terms like ‘in­her­ently harm­ful in­for­ma­tion’, ‘caus­ing harm to the na­tion’ are won­der­fully vague ex­pres­sions. They could mean al­most any­thing. Those sorts of broad def­i­ni­tions are very wor­ry­ing,” he says.

But the re­sponse from gov­ern­ment to those con­cerns, says Whealy, “is,

‘We’re not go­ing to in­ter­pret them that broadly’, ‘We’re not go­ing to tar­get peo­ple who don’t de­serve to be tar­geted’, ‘We’re only in­ter­ested in pro­tect­ing clas­si­fied in­for­ma­tion.’ ”

If the in­tent is to in­ter­pret the laws more nar­rowly, they should be de­fined more nar­rowly, Whealy says.

“That leads to a sec­ond point: clas­si­fied in­for­ma­tion’s a strange beast. Al­most any­thing can be clas­si­fied, and there’s al­ways a worry that clas­si­fied in­for­ma­tion can be­come an ex­cuse for hid­ing things away that po­lit­i­cal par­ties don’t want us to see.”

He al­ludes to the re­cent ex­tra­or­di­nary events, in which a man bought two locked, ex-gov­ern­ment cab­i­net safes, drilled the locks off, and found them full of “clas­si­fied” doc­u­ments, which he then passed to the ABC. The broad­caster sub­se­quently ran sto­ries re­lat­ing to the con­tents of some of the files that, while em­bar­rass­ing to gov­ern­ment, pre­sented no se­cu­rity threat.

“I’d like to know how much of that is re­ally in­for­ma­tion that re­quired clas­si­fi­ca­tion,” Whealy muses.

“The gov­ern­ment says [the leg­is­la­tion] is not aimed at jour­nal­ists, and also says there’s a de­fence for jour­nal­ists. Those two things can’t stand to­gether. If you are go­ing to have a de­fence for jour­nal­ists, it must mean jour­nal­ists could be li­able to pros­e­cu­tion,” he says.

“That de­fence is fair and ac­cu­rate re­port­ing in the pub­lic in­ter­est. But it doesn’t tell you what’s in the pub­lic in­ter­est. Again, it is one of those def­i­ni­tions that eludes you.

“The other thing that wor­ried me about it is … the act says there is strict li­a­bil­ity, which means that all they have to prove is that it’s clas­si­fied and it doesn’t mat­ter whether you know it’s clas­si­fied or not.

“Bear in mind, too, the def­i­ni­tion of ‘deal­ing ’ with clas­si­fied in­for­ma­tion is hav­ing it, pho­to­copy­ing it, send­ing it, pass­ing it around the of­fice, giv­ing it to a sec­re­tary. So ev­ery­one in a jour­nal­ist’s of­fice could be clas­si­fied as ‘deal­ing’ with it. And we’re not nec­es­sar­ily talk­ing about a folder with ‘clas­si­fied’ writ­ten on it. We’re talk­ing about in­for­ma­tion here – that might be oral. But if you are pros­e­cuted, it’s strict li­a­bil­ity, whether you know about it or not. That seems heavy-handed.”

It is chill­ing for both jour­nal­ists and their sources.

As noted by the ABC’s head of in­ves­tiga­tive and in-depth jour­nal­ism, John Lyons, who over­saw the han­dling of the Can­berra cab­i­net safe ma­te­rial, the pro­posed laws could “crim­i­nalise some forms of in­ves­tiga­tive jour­nal­ism as early as the re­search phase”.

A con­ver­sa­tion between a jour­nal­ist and a fed­eral po­lice of­fi­cer or pub­lic ser­vant about pos­si­ble cor­rupt be­hav­iour could lead to both par­ties do­ing jail time, Lyons said.

La­bor’s shadow at­tor­ney-gen­eral, Mark Drey­fus, seized on the happy co­in­ci­dence of the cab­i­net files revelation and the par­lia­men­tary in­quiry into the pro­posed leg­is­la­tion to drive home the point.

“The ex­am­ple last week of the cab­i­net of cab­i­net leaks, some­one not know­ing what was in the cab­i­net, re­ceiv­ing it – on open­ing it, would, if these laws had been in place then, have po­ten­tially been ex­posed to 15 years in jail,” he told Sky News on Mon­day.

The at­tor­ney-gen­eral, Chris­tian Porter, claimed Drey­fus was wrong to sug­gest the bloke who bought those cab­i­net safes could be bunged up. But Drey­fus’s broader point, that some­one could face “po­ten­tially 15 years in jail for in­no­cent re­ceipt of a clas­si­fied doc­u­ment”, ac­cords with the un­der­stand­ing of his fel­low silk, Whealy.

In any case, by the time Drey­fus ap­peared on Sky on Mon­day, the gov­ern­ment was al­ready pre­par­ing a re­treat, with Porter sug­gest­ing he was con­sid­er­ing some changes to the leg­is­la­tion. Just a cou­ple of days af­ter that, the re­treat be­came a sur­ren­der.

Mat­ters of na­tional se­cu­rity are usu­ally a big po­lit­i­cal pos­i­tive for the Coali­tion gov­ern­ment, as they are for con­ser­va­tive gov­ern­ments gen­er­ally.

But not this time. This time even their re­li­able sup­port­ers in the Mur­doch tabloids were against them. On Tues­day, Syd­ney’s Daily Tele­graph ran a front­page pic­ture of Turn­bull, along with a ham­mer and sickle, and the head­line “From Spy­catcher to op­pres­sor”.

MIKE SEC­COMBE is The Satur­day Paper's na­tional cor­re­spon­dent.

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