Albo finally weighs into press freedom — but it’s more complicated than you think –

Albo finally weighs into press freedom — but it’s more complicated than you think –

Albo finally weighs into press freedom — but it’s more complicated than you think

Bernard Keane
|

Oct 13, 2014 1:04PM 

The debate over jailing journalists who reveal ASIO’s covert
operations is welcome but missing some context — and it’s not the
biggest threat to media freedom on the agenda.

After weeks of marching in lockstep with the Coalition on
matters of “national security” (including provisions that would jail
journalists — or anyone else — for up to 10 years for revealing secret
ASIO operations), a senior Labor politician has suggested it might be
useful to debate the proposals rather than passing them with a minimum
of scrutiny.


Anthony Albanese said on Sky News Sunday morning:

“I believe that the media laws,
much of them, are draconian.  When we talk about potential penalties of
five to 10 years’ jail for exposing what might be an error made by the
security agencies then I think when people like [Australian scribe] Greg
Sheridan, as you say, are drawing it into question, as well as, I’ve
had approaches from the media alliance, you know, we are all concerned
as Australians about the jailing of Peter Greste in Egypt.  Why has he
been jailed?  Because he was reporting, and therefore seen to be somehow
supportive of, these actions.”

But when it comes to the Australian Security Intelligence
Organisation’s special intelligence operations” (or covert ops)
provisions of the government’s now-legislated first round of national
security reforms, things are a little more complicated than they appear.


The SIO provisions have been in the public domain since
mid-2012, when then-attorney-general Nicola Roxon initiated an inquiry
by the Joint Committee on Intelligence and Security into a range of
national security reform proposals. Current Attorney-General George
Brandis is thus quite right to note that these laws haven’t exactly been
rushed through Parliament. But the focus at the time was not on the
implications of revealing covert operations, but on the fact that ASIO
wanted an exemption from prosecution for its officers for any criminal
activities they might be involved in while undercover. I made a lengthy
submission to the JCIS inquiry in a private capacity, but I confess the
issue of revealing information about such operations never occurred to
me; I’m not aware of anyone else raising that issue either, although I
certainly didn’t read all of the hundreds of submissions made to that
inquiry. The JCIS had a better grasp of the issue, however, and
understood that ASIO was asking for a similar scheme to the Australian
Federal Police’s “controlled operations”. JCIS recommended that any such
scheme for ASIO be modelled on controlled operations.

“Politicians
also need to understand the threat data retention poses to them: the
AFP can go and get their metadata just as easily …”

This is significant, because when journalists raise the
possibility of being jailed in relation to SIOs, and when Albanese
suggests they need to be wound back, that raises a question of whether
the controlled operations laws, too, should be wound back, because a
journalist — or whistleblower, or politician — can be jailed for
revealing information about a controlled operation, although the penalty
for revealing AFP operations is two years, rather than five for SIOs
(both have 10-year jail terms for revealing information that harms or is
intended to harm an individual or operation). So far, there has been
virtually no discussion of whether the existing AFP laws chill free
speech or are a threat to journalists in the same way as the ASIO laws
do, even though exactly the same concerns could be raised about the
abuse of those laws.


As we’ve repeatedly explained, however, there is a signal
difference between the ASIO and AFP laws in that — contrary to the
original JCIS committee report — there are external oversight
requirements for the AFP that don’t apply to ASIO, unless you believe
the fiction that the Australian Intelligence Community’s tame, in-house
watchdog, the Inspector-General of Intelligence and Security, seriously
represents external oversight.


It was the oversight issue that Labor members pursued in
relation to SIOs during the recent JCIS inquiry into the draft
legislation, unsuccessfully.
Labor’s Penny Wong, with some support from South Australian Liberal
David Fawcett, also pushed, with more success, for the element of
“recklessness” in the relevant offence to be clarified in a way that
lifted the threshold for prosecution. But there’s no public interest
defence available to journalists in relation to revealing information
about an SIO, just as there’s no public interest defence in relation to
AFP-controlled operations. The plausible and consistent options to
ameliorate the SIO provisions would thus either be to provide
like-for-like independent oversight safeguards in relation to SIOs, in
line with the original JCIS recommendations — thereby reducing the
possibility of SIOs being abused — or inserting a public interest
defence in relation to revealing information about both SIOs and
controlled operations. The latter would induce a paroxysm of rage from
ASIO and the AFP, where there is a very strict demarcation between leaks
that serve the interests of the agency and the government — which are
never investigated — and leaks that tell people something the agencies
don’t want them to know, which are aggressively pursued.


And yet again, it’s important to note that the SIO
provisions aren’t the main event when it comes to a threat to media
freedom. That belongs to data retention, which is a direct threat to
journalists and their sources. It’s also a direct threat to any
politician who has relied on whistleblowers to tell them what’s really
happening within an organisation. Hopefully those journalists who have
criticised the SIO provisions will muster the same energy when the data
retention bill emerges from the incompetent clutches of the
Attorney-General’s Department in coming weeks — indeed, Laurie Oakes has already done so.
And politicians also need to understand the threat data retention poses
to them: the AFP can go and get their metadata just as easily as it can
a journalist’s, or public servant’s. We look forward to seeing them
join the fight.