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Chief political correspondent for The Saturday Paper Karen Middleton, on Australia’s secrecy laws and whether the government’s overhaul will go far enough.

Is Australia’s regime of secrecy over?

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Critics say Australia may be the world’s most secretive democracy, with a patchwork of laws and obstacles standing in the way of transparency and press freedom.

The Albanese government has recognised this, releasing a review to clean up Australia’s secrecy laws. 

So, will it fix them, or is it just a band-aid solution? 

Today, chief political correspondent for The Saturday Paper Karen Middleton, on Australia’s secrecy laws and whether the government’s overhaul will go far enough.

 

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Guest: Chief political correspondent for The Saturday Paper, Karen Middleton

Read Transcript
[Theme Music Starts]
 
##ANGE:
From Schwartz Media, I’m Ange McCormack. This is *7am*.
 
Critics say Australia may be the world’s most secretive democracy, with a patchwork of laws and obstacles standing in the way of transparency and press freedom.
 
The Albanese Government has recognised this, releasing a review to clean up Australia’s secrecy laws. 
 
So, will it fix them… or is it just a band-aid solution? 
 
Today, chief political correspondent for *The Saturday Paper*, Karen Middleton, on Australia’s secrecy laws, and whether the government’s overhaul will go far enough.
 
It’s Wednesday, November 29. 
 
[Theme Music Ends]
 
##ANGE:
Karen, In 2019, there was an article published by the *New York Times* and its headline was “Australia may well be the World's Most Secretive Democracy”, which was a pretty bold claim. What was happening in 2019 that led to that headline?
 
##KAREN: 
Well, there was a law actually Ange, happening in 2019 in the area of security and information. We saw the example of 2GB radio host Ben Fordham finding out that he was being investigated for reporting that several boats filled with asylum seekers had been trying to reach Australia from Sri Lanka. He found that out from a Department of Home Affairs source.
 
##Audio excerpt – Ben Fordham: 
“The Department of Home Affairs is currently investigating reports from Sri Lanka that up to six boats could have recently attempted journeys to Australia.”
 
##KAREN: 
And he then revealed on air that he was being investigated and said that he felt compelled to do that because there'd been a federal police raid on another journalist's home for reporting information that the government didn't want to be public. 
 
##Audio excerpt – Ben Fordham: 
“While I was hosting this show yesterday afternoon, there was something going on behind the scenes that I could not discuss at the time. But today, in light of a police raid this morning on the News Corp journalist Annika Smethurst, I'll share with what's happening with me.”
 
##KAREN: 
Now, this is all under the previous coalition government, which was particularly protective of information. And that raid was relating to Annika Smethurst, who then worked for News Corp and had written a story about the Australian Signals Directorate, which is the Australian Cyber spy agency and extra powers that were being proposed for that agency to effectively conduct surveillance on Australians, which it hadn't had the power to do before.
 
##Audio excerpt – Annika Smethurst: 
“I became aware of this and published a story about 14 months ago and at the time after it appeared, there was, I was informed that the departments were not happy and that perhaps there would be an investigation. But I haven't heard anything for 14 months and I was definitely not expecting seven police officers to show up at my home on Tuesday.”
 
##KAREN: 
That was a very controversial story. Annika’s home was raided, her mobile phone was sealed, her computer was sealed. And the police said it was because she had allegedly published information that was an official secret.
 
Now there was another raid by the Federal Police soon after that, the raid on the ABC headquarters in Sydney relating to reporting by two journalists Dan Oakes and Sam Clark. They had received a leak about the actions of Australian soldiers in Afghanistan and the fact that some of them were being investigated for war crimes. 
 
So all of these formed a picture in 2019 that the government was on the warpath about information and trying to keep it secret and that the levels of retribution for the publication of information that it considered to be secret seem to be ramping up. 
 
##ANGE:
Yeah. And all of this led to a lot of focus on Australia and just how secretive a country it is. So are Australia's secrecy laws fit for purpose by modern standards? And how does this government see things?
 
##KAREN:
Well, this is the big question. When Labor was in the opposition, they protested it the way the Coalition government was handling these matters and said that was concerned about the public right to know and about the secretive nature of government operations. 
 
Now, as Attorney-General Mark Dreyfus has said that he does think that the secrecy laws need an overhaul. He had undertaken a review of secrecy laws, which was finally made public last week.
 
And the result of that review is that they found that Australia has 875 separate secrecy and non disclosure laws. And they found this huge web network of laws intersecting, overlapping, in some cases contradicting each other, that governed what could and couldn't be made public in Australia, both in relation to what public servants can do and what third parties can do, including journalists and people who might be whistleblowers as well. 
 
So he has undertaken to try and streamline the system, review all of these laws, work out which ones can be abolished and which ones need to stay, but make it less confusing and simpler to understand.
 
And he was also concerned about the fact that criminal liability attached to a number of secrecy offences so that you could actually be mandatorily jailed for publishing particular kinds of information.
 
So I wanted to talk to the Attorney-General about this and get an understanding of why he felt that it was important and how is overhaul is gonna work.
 
##ANGE:
So, Karen, can you tell me more about the results of this review and how the Attorney-General is planning to reform Australia's secrecy laws?
 
##KAREN:
Well, there are a range of things that  it will do.
 
And he told me that he wanted what he called a harms based approach. So instead of all these disparate things that sort of overlap each other and contradicting each other, he wants some overriding principles. 
 
And this review, which he commissioned and whose recommendations he's now going to follow, has about 12 proposals. And within the first one is suggesting there should be a set of principles laid out, 12 principles which should form the basis for deciding whether these laws are relevant or not relevant. And underpinning all of that is how much harm does the disclosure of certain information cause and not only how much does it actually cause? How much would it potentially cause?
 
And that's the basis upon which they would judge the sorts of punishments that should be attached to the disclosure of particular kinds of information. So they’re using this as the general approach now, instead of dealing with all these individual things in a separate way.
 
And some things are yet to be done. They’re going through and looking at every single secrecy and nondisclosure law and making sure that it deserves to still be there. And they say they will consolidate some and remove others just to get the system more fit for purpose and more user friendly.
 
So the government is looking at the laws that apply to journalists. The fact that a lot of them have criminal liability attached to them at the moment.
 
Explicitly, it was looking at the obligations of Commonwealth public servants and whether the existing law was appropriate. They are separately looking at whistleblower legislation and whether the protections for whistleblowers are strong enough. And that's the sort of extra element that is yet to be finalised.
 
They looked at not only the role of government employees, but the role of contractors, and that of course came into particular focus this year with the revelations around PwC, the professional services company that was found to have used information on a planned multinational tax evasion crackdown that it had received as a consultant to government, and taking that information to service its clients and find a workaround for those laws that were coming in and also to recruit new ones.
 
##Audio excerpt – News Reporter (ABC): 
“Politicians have been telling us how ropable, furious and filthy they are, the consultancy firm which used highly confidential government information to help their clients dodge tax, but it sentenced as an intimate hearing, it’s being questioned left unanswered, about why took six long years to expose the wrong doing, and those responsible…”
 
##KAREN:
And in the context of that PwC revelations, the government is now proposing a single catch-all general secrecy offence, which it aims to pick up bits that aren't covered by specific offences. And they are saying that they want that to ensure that you can't have a repeat of the PwC example. 
 
And some critics are concerned that could be very generic and leave room for the government to interpret it anyway it likes.
 
##ANGE:
After the break - will the new regime of secrecy laws make Australia more transparent?
 
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##ANGE:
Karen, we’re talking about reforms to Australia’s secrecy laws, and part of that is this catch-all secrecy offence. Can you tell me more about why this offence is controversial?
 
##KAREN:
Well I think the key in that proposed general secrecy law, which is making it controversial, is there's a phrase in there that suggests that the new law would be aimed at outlawing the disclosure of information which could prejudice the effective working of government. But it isn't clear what that means. There's no definition in the review of what the effective working of government is or what might prejudice it. So people are asking questions about them and saying, let's say these very general things, that could be anything.
 
For example, I spoke to the chair of the Centre for Public Integrity, who's a former New South Wales judge, Anthony Whealy KC And he is saying that this really does need to be properly defined. Because he says the phrase “the effective working of government” has no meaning at all. He said and I quote, “It could have any meaning you like. It's one of those catch phrases that could be used to stifle openness.” he said, “It would be everything and nothing at once. And so defining that is very important.” 
 
And when I raised some of the criticisms and concerns about, for example, the generic nature of the proposed new offence that could capture anything. Mark Dreyfus, the Attorney-General, said, “Look, I don't think people should be jumping at shadows. You know, I'm serious about this, making it a harms based approach.” And he insisted that it won't be the Government's default position to keep things secret, which he said was the position of the previous government. And I’ll quote him, he said, “I would say directly to you that potential embarrassment for a government is not a justifiable presumption of secrecy”, unquote. 
 
So that's interesting because there have been many criticisms made of governments in the past that they fall back on secrecy and non-disclosure law to cover up things that they've just been embarrassed about. And he is insisting that he won't be doing that.
 
##ANGE:
And while the Attorney-General is looking at these reforms, the government is also hoping to enshrine in legislation a rule that gives the Attorney-General final say on whether a journalist is or isn't prosecuted for secrecy offences. Why is the government doing this and does it raise any concerns?
 
##KAREN:
Well, it depends a bit on who you talk to Ange, some people are concerned about it. This is something that came up under the previous government in the context that we were just discussing, which is when Annika Smethurst and Dan Oakes and Sam Clark were being pursued, there was a question about the grounds upon which journalists should be pursued for secrecy offences.
 
And because of the public pressure at the time, the then Attorney-General Christian Porter stepped in and said “to reassure the public, I will make a provision that the attorney-general will have to personally approve any proposed prosecution of a journalist with secrecy offences and would have to consider it on the public interest grounds”. 
 
Now he put that into a directive, not into legislation. So it was something that has existed since he did that but it wasn't enshrined in law, which means that a future Attorney-General decided not to pursue that, would just remove it with the stroke of a pen. 
 
Now the current Attorney General, Mark Dreyfus, has decided to retain that power, but he's going to enshrine it in legislation. So he says that is as a check in a balance on bad practice. And that will mean that if it needs to be revoked, that the Parliament would have to approve it. Now that doesn't get around the criticism some people are making that there is a concern about having the Attorney General have that power. 
 
People like Peter Greste, campaigning for media freedoms have said that they are concerned that that blurs the lines between the justice system and the government, and that is a worrying power to give an attorney-general to be able to authorise that prosecution. 
 
Now to that sort of argument, Mark Dreyfus says, “well, it's a one way process. I don't get to suggest that someone should be prosecuted, I don’t get to propose that someone should be prosecuted. It's only when the Commonwealth Director of Public Prosecutions comes to me having reviewed evidence and decided that the case against the journalist, I the attorney general” he said, “I would then have to decide whether it meets threshold test or whether it's not in the public interest to prosecute this person.” So he says it's actually a handbrake on improper prosecution and not anything that is improper of itself.
 
##ANGE:
And Karen, at the start of our conversation, we spoke about, you know, this overall state of Australia's secrecy laws which were being noticed around the world for how tough they were. Is there a sense from experts over whether these reforms go far enough to make Australia ultimately a more open and transparent place?
 
##KAREN:
Well, I think the general message seems to be that it does go some way to improving the system that we have now, but not far enough. If you talk to the people like the Centre for Public Integrity and other agencies that have been pressing for greater transparency and accountability in our country. So they are saying that there needs to be more adjustment to things like the freedom of information system so that we still don't get arbitrary blocking of information for spurious reasons. 
 
Now, the Attorney-General has now, in the last few days, announced a new Freedom of Information Commissioner. So he is arguing that he is taking steps to rectify the FOI system as well. But there are people who still think we can get there in improving the secrecy arrangements.
 
So altogether, we're seeing a number of steps being taken to try and improve that secrecy reputation that Australia has, and it certainly has it to make us a less secretive community and to give the public a much greater access to the information about how their own government and their own Parliament is operating.
 
##ANGE:
Karen, thanks so much for your time today.
 
##KAREN:
Thanks Ange.
 
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##ANGE:
Also in the news today, 
 
The ‘Father of Reconciliation’, Patrick Dodson, has resigned as senator for Western Australia due to health issues from his cancer treatment.
 
Pat Dodson has been a senator since 2016, and was appointed the special envoy for Reconciliation and Implementation of the Uluru Statement by Anthony Albanese. Dodson said serving in the Parliament has been an honour. 
 
And, 
 
Macquarie Dictionary has named ‘cozzie livs’ its word of the year.
 
The term refers to the cost of living crisis, which the committee said “resonated soundly with Australia” in 2023. Other words on the shortlist included “algospeak”, “angry water”, and “doof stick”. 
 
I’m Ange McCormack, this is *7am*. We’ll be back again tomorrow. 
 
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Background Reading

news
November 25, 2023
Mark Dreyfus pushes secrecy law changes

In an interview with The Saturday Paper, the attorney-general explains his overhaul of national secrecy laws to limit their use, amid concerns about exceptions for information that could prejudice the ‘effective working of government’.