THE SECRET STATE SURVIVES

Almost exactly two years ago, the Australian Federal Police executed a search warrant at the ABC’s headquarters in Ultimo, Sydney. That raid, and the search the day before of News Corp reporter Annika Smethurst’s home, produced an outcry. But what has happened since? Two inquiries, two reports, and precious little else, reports ABC Alumni’s press freedom spokesperson Jonathan Holmes. Australia still suffers from ‘excessive and unnecessary secrecy’.

(A shorter version of this article was published on Sunday 6 June 2021 in Nine newspapers)

TWO RAIDS, ONE OUTCRY

In Australia, the raids forged a temporary alliance between all the big media players.  News, Fairfax (as it then was), the commercial TV networks, the journalists’ union MEAA, the public broadcasters – all were up in arms.  One day in October 2019 the nation’s newspapers carried pages of blacked out, ‘censored’ news to draw attention to Australia’s increasingly secretive and paranoid polity.

Faced with this media outcry, government responded as government does: it commissioned an inquiry – this one by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), the body that customarily vets the ever-proliferating litter of security laws.  The committee was asked by then Federal Attorney-General Christian Porter to inquire into how ‘to better balance the need for press freedom with the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats.’

(Matthew Doran)

THE COMMITTEE SQUIBS IT

That was in August, 2019. The committee reported a full year later, in August 2020. My reaction at the time was that the report laid out the problem succinctly and forcefully. To quote just one sentence:

The Committee notes that the prevailing argument to this inquiry from non-government stakeholders is that the balance in legislation and culture within the Australian Government has tipped away from transparency and engagement to excessive and unnecessary secrecy.

But in my view among many, the committee’s proposed solutions fall sadly short.   

It was asked to recommend a Media Freedom Act, to enshrine somewhere in federal legislation what Australia, almost uniquely among comparable democracies, doesn’t have in its constitution or in any kind of bill rights: a formal acknowledgement of the importance of freedom of the press. 

It squibbed that one.

It was asked to recommend that warrants to search the offices or stored data of journalists and media organisations should be contestable, as they are (for example) in the UK.  Media organisations there are informed that a warrant is being applied for, and are able to make representations directly to the judge or other issuing authority.

It squibbed that, too.

Instead, the committee gratefully grasped a proposal put forward by the Law Society: that the role of so-called Public Interest Advocates (PIAs) be extended.

PUBLIC INTEREST ADVOCATES

You can read a more extended analysis of the origin and role of PIAs (what little we’re allowed to know about them) in that earlier article.  Suffice to say here that PIAs were invented by former Attorney-General George Brandis to ward off media protests at the law that requires telecoms to retain our metadata for two years – the amended Telecommunications (Interception and Access) Act or TIA for short.   If a law enforcement agency wants to search a journalist’s metadata in order to identify the source of a leak, the TIA Act says it first has to get a Journalist Information Warrant; and the granting of that warrant can be contested by a Public Interest Advocate.

George Brandis QC, Federal Attorney-General 2013-2017 (abc.net.au)

But PIAs are a fig leaf, and a farce. They are lawyers, not journalists; they operate in secret not in public, they are not permitted to consult with the journalist or media organisation against whom a warrant is being sought, so they are reduced to mouthing platitudes about the public interest in a free press; we don’t know who they are, what warrants they have contested, or how successfully.

Yet this is the furtive regime that the parliamentary joint committee recommends should be extended: PIAs should be able to contest, not just Journalist Information Warrants under the TIA Act, but any warrant, under a raft of Acts, that authorises a search of media organisations’ offices, or journalists’ homes, phones, computers and files (see Recommendations 2, 3, 4 and 5 of the PJCIS report).

Five months later, last December, the government graciously agreed to wear the committee’s fig leaf.   The PIAs’ role will be extended, and a certain, minimal amount of information about them and their activities will be made available 

‘The Minister for Home Affairs and the Department of Home Affairs’, the government said in its response to the report, ‘will lead the development of legislation to implement’ these recommendations.’

JUSTICE SECRET AND JUSTICE SQUIRREL

So five months later, how are we doing?  What’s changed?

Answer: nothing at all, so far. Extending the PIA’s’ role means amending the Crimes Act 1914, the Surveillance Devices Act 2004, the TIA Act 1979, and the ASIO Act 1979, just for starters.  Last week I asked the Department of Home Affairs whether any of the required amendments would be presented to the Parliament in 2021, and how soon the additional information about PIAs would be forthcoming.

The answer I got to those questions, in its entirety, is this:

The Department of Home Affairs is considering the most effective way to implement the recommendations of the Parliamentary Joint Committee on Intelligence and Security on Public Interest Advocates.

Well meanwhile, I asked Home Affairs, can you tell me how many PIAs there are, their qualifications, and their states of residence, as the PJCIS recommends?  Are the two judges identified by the Sydney Morning Herald through the Freedom of Information Act five years ago, Justices Kevin Duggan of South Australia and John Muir of Queensland, still serving as PIAs?

(@justinian.com.au)

No, they’re not, says Home Affairs.  Two other former Supreme Court judges,  again from South Australia and Queensland, have replaced them.  

We are not permitted to know their names.  Why not?  Who knows? In my book, a classic example of ‘excessive and unnecessary secrecy’. 

ITS NOT A RACE

Another recommendation from the Joint Parliamentary Committee is that the Attorney-General’s Department complete a review of all secrecy legislation by the end of this month, and consider amending the relevant laws to insert a public interest defence for bona fide journalism.  How’s that one going? I asked Attorney-General’s.  Its response:

The department has completed a survey of Commonwealth secrecy legislation…The survey has identified 11 general secrecy offences, 487 specific secrecy offences and 210 non-disclosure duties.

But it hasn’t even begun to consult ‘key stakeholders’ about proposals for reform, including the protection of public interest journalism.  ‘Further time may be required due to the complexity of the issues involved.’

Of course it will.  After all, this is not a race.

LEAKING IS THEFT

ABC Alumni has a particular interest in this issue.  In our submissions to both the PJCIS inquiry, and to the parallel inquiry on press freedom by the Senate Communications Committee (which unlike the PJCIS has a Labor/Green majority) we focused on two particular sections of the Criminal Code, which no one would normally think of as a ‘secrecy offences’.

ABC Alumni’s Quentin Dempster and Jonathan Holmes at the Senate Committee for Environment and Communications inquiry on press freedom, Parliament House Canberra, 18 October 2019 (@quentindempster)

Major David McBride, a former military lawyer, has publicly admitted to being one of the sources of the classified defence documents on which the ABC’s The Afghan Files were based.  McBride is currently being tried – in secret, of course – on three charges.  One of them is that he stole Commonwealth property, contrary to section 131.1 of the Criminal Code Act 1995.

Stole Commonwealth property?   With all the secrecy offences on the statute books, the Commonwealth Director of Public Prosecutions has chosen to charge McBride with stealing Commonwealth property?  Well, yes.  Perhaps because, unlike the old secrecy laws that were in force at the time of the alleged crime, or the new ones that have since replaced them, the CDPP doesn’t need the Attorney-General’s permission to charge someone with theft.  

And also, perhaps, because the offence of theft has a reciprocal offence:  that of knowingly receiving stolen property.  Sure enough, if you look at the warrant that the Federal Police brought with them to Ultimo, on that June morning two years ago, it says that there are reasonable grounds for suspecting that ‘Daniel Michael Oakes dishonestly received stolen property from David William McBride,…contrary to section 132.1 of the Criminal Code Act 1995’.

As we pointed out to both inquiries (and almost no other submission did), if McBride is found guilty of theft, it means that a whistleblower who leaks ANY Commonwealth information, whether secret or innocuous, can be charged with a criminal offence with a maximum sentence of ten years.

And if Oakes had been charged with receiving, it would have meant that ANY reporter receiving ANY information from a Commonwealth whistleblower, whether or not it is ever published, could also be charged with a criminal offence with a maximum ten year penalty. As far as I can see, they still could be.

MR PORTER’S DIRECTIVE

In October 2019, while the media reaction to the raids was still running hard, then Attorney-General Christian Porter issued a directive to the CDPP.  It should not proceed with the prosecution of any journalist for certain specified offences without his express permission.  Among those offences was s132 of the Criminal Code.

Earlier, Porter had said publicly that he would be ‘seriously disinclined’ to approve the prosecution of a journalist for doing his or her job.  So that directive was of some comfort to the ABC, and to Oakes.

But it took another year for the CDPP to decide that, although there was a reasonable prospect of convicting Oakes of several offences, ‘the public interest does not require a prosecution in the particular circumstances of this case.’

In other circumstances, the CDPP seems to be saying, a reporter might well be prosecuted for receiving stolen property. And, bizarrely to my mind, recommendation 9 of the Senate Communications Committee report, which was finally issued in May this year, recommends that the Attorney-General (who is now Michaelia Cash) withdraw the directive that the prosecutor would have to get her approval first.

‘The committee considers it highly inappropriate,’ says the report (par 3.86), ‘for a government minister to interfere with this process [the CDPP’s prosecution of Commonwealth offences] and considers that the direction is a dangerous precedent which should be immediately discontinued.’

A BIZARRE RECOMMMENDATION

The recommendation is bizarre, because it ignores the fact that the division of the Criminal Code  Act 1995 that actually does deal with the unauthorised leaking of government secrets, Division 122, specifically provides that no prosecution can take place without the written approval of the Attorney-General [see s123.5(1)].  The old secrecy laws that were in force when McBride allegedly leaked government secrets had a similar provision.

The new secrecy laws also contain, for the first time, an explicit defence [s122.5(6)] for journalists who reasonably believe they are acting in the public interest.  No such defence, of course, exists for receiving stolen property.

In fact we at ABC Alumni were concerned that the AFP had chosen the ‘theft’ offence precisely to avoid the safeguards built into the secrecy laws – as the senate committee’s report acknowledges (par 5.12)

Despite that, its report says nothing about the blatant inappropriateness of using the theft offence to prosecute the leaking of government secrets, when there’s a raft of other legislation aimed at just that sort of crime.  Instead, it recommends removing a safeguard that already exists for most secrecy offences, but would not, if it had its way, for theft and receiving stolen property.

In the face of this nonsense, I asked the Attorney-General’s department this week whether ss131 and s132 of the Criminal Code will be included in its review of secrecy offences; and if so, whether it is considering providing a public interest defence for journalists prosecuted for ‘receiving stolen property’.

To summarise the department’s wordy response, it is ‘yes, we’re looking at those offences, and yes, we’re considering whether they need amendment, including a public interest defence’.

Well, that’s something.  But I suspect it will be months before the department sends its Review of the secrecy laws to government; months more before the government allows us ordinary citizens to see the Review; and years before any actual changes to the law get on the statute books – if they ever do.

AUSTRALIANS ALL, LET US REJOICE…

Meanwhile, of course, our government, its ministers, and our senior public servants are concerned about more urgent matters: controlling the pandemic; avoiding – or should that be preparing us for? – the coming war with China; combatting terrorism; keeping Australians safe.

(warmemorialregister.nsw.gov.au)

Every ANZAC Day we’re told that our forefathers gave their lives for our freedom.  But for the past twenty years, ever since 9/11, we’ve been asked to give up more and more of our liberty to secure our lives.  And we’ve agreed.

Australians all, let us rejoice

For we are one, and…safe

Doesn’t have quite the same ring to it, somehow.

Jonathan Holmes : 6 June 2021

Jonathan Holmes worked for the ABC off and on between 1982 and 2013. He was at various times executive producer of, and a reporter with, Four Corners, Foreign Correspondent and 7.30, and presented Media Watch between 2008 and 2013. He is now a director of and press freedom spokesperson for ABC Alumni.

Leave a Reply