Federal war on news and truth
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 front-page picture of Turnbull, along with a hammer and sickle, and the headline “From Spycatcher to oppressor”.
“A brave Malcolm Turnbull once fought the British government to publish official secrets. Now 30 years later the Prime Minister’s new laws would jail journalists and suppress the truth.”
By Thursday evening, Porter’s office was distributing to media a list of changes that would be made to the legislation.
The changes would:
• Narrow the definitions of “conduct that would cause harm to Australia’s interests” and the definition of “inherently harmful information”;
• Ensure that “non-Commonwealth officers” would only be prosecuted for “the most serious and dangerous conduct and;
• Remove any requirement for journalists “to demonstrate that their reporting was ‘fair and accurate’, ensuring that the defence is available where a journalist reasonably believes that their conduct was in the public interest, and clarifying that the defence is available for editorial and support staff as well as journalists themselves.”
In his media statement, Porter denied that there had ever been “any plan by the government to see journalists going to jail simply for receiving documents and that would not occur under this bill as currently drafted”.
“The proposed government amendments I have instructed will make this completely clear and further strengthen protections to journalists.”
Porter cited statistics to suggest the government was simply following usual legislative process. There had been nine tranches of new national security laws since 2014, he said, and all had gone to the parliamentary joint committee on intelligence and security for public inquiry and report.
“The committee made a total of 125 recommendations to amend those bills. The government accepted all 125 of those recommendations, and made 273 amendments to those bills before they were passed.”
But Porter’s assertion is doublespeak, too. The process was actually highly unusual. For a start, it is usual to wait for the committee to report before making amendments. In this case, the committee is not due to report until late March.
Though it would be nice to think the government was responding to the considered criticism of the likes of Bret Walker, Anthony Whealy et al, there is reason to believe the stimulus was a tabloid bashing.
Things were different this time; not only procedurally, but politically, too.
The usual course of events in relation to new anti-terrorism or national security legislation tends to go like this: the government introduces laws containing elements they hope will be unacceptable to the other side; Labor either opposes these elements, in which case they are accused of being soft on terrorism or national security, or Labor goes meekly along with them, in which case the decision foments factional disagreement within the Opposition.
More often than not, once the issue has been milked for maximum populist advantage, the legislation is amended to something less awful.
The classic example dates to August 29, 2001. On that day, the master of this kind of wedge politics, then prime minister John Howard, announced that he had just authorised SAS troops to take control of the Norwegian freighter MV Tampa, to prevent it from bringing its cargo of rescued refugees to Australia.
To the horror of many of his parliamentary colleagues, opposition leader Kim Beazley rose and endorsed the move. Later the same day, Howard upped the ante, producing legislation that, among other measures, exempted all Commonwealth officers of any legal consequences for crimes they might commit against boat people.
Beazley could not support a measure that would potentially sanction murder, and that also was clearly unconstitutional. And there’s no reason to believe Howard really supported it either. But it allowed him to portray Beazley and Labor as soft on border security.
Subsequently Howard abandoned that piece of legislation, on the understanding Labor would support several other bits of slightly less draconian legislation, including offshore processing.
Howard won the 2001 election, and he established the model the conservative parties have tried to use ever since.
But a number of things are different this time. Principally, the move lacked the support of the News Corp tabloids. And they are a risk greater than terrorism in the minds of the government.
This article was first published in the print edition of The Saturday Paper on Feb 10, 2018 as "Federal war on news, truth". Subscribe here.