Media companies oppose draft laws

Proposed new laws on espionage and foreign interference could see journalists and whistleblowers face 20 years in prison.

ROS CHILDS: The ABC has obtained thousands of pages of top-secret and highly classified cabinet documents following an extraordinary breach of national security. They reveal the inner workings and deliberations of five separate governments, gg and Coalition. The extraordinary revelations show an alarmingly casual approach to the security of such sensitive documents.

— ABC Midday News, 31 January, 2018

Hello, I’m Paul Barry, welcome to Media Watch, and a whole new year of watching the media.

And how’s that for national security!

Two locked filing cabinets, sold at a government auction in Canberra. And when the mystery buyer finally prised it open:

ASHLYNNE MCGHEE: … they found this incredible trove of documents, thousands of pages, hundreds of documents, all highly sensitive, highly classified cabinet documents.

— ABC Midday News, 31 January, 2018

The secrets of five governments, delivered to the ABC.

After lengthy negotiations to protect the source, and probably ABC funds, they’re now back in ASIO’s hands.

But not before the ABC and the rest of the media reported on some of the contents:

OLIVIA LEEMING: The papers reveal Tony Abbott considered banning welfare for under 30s. John Howard looked at scrapping the right to remain silent for police arrests … They also reveal just how many other secret documents have gone missing showing the Australian Federal Police lost nearly 400 national security papers in five years.

— Channel Seven 4pm News, 31 January, 2018

Amazing and embarrassing revelations, which we surely have a right to know about. But guess what. If proposed new laws, designed to crack down on foreign espionage, had already got through parliament we might never have known anything – either of the leak or the contents:

ASHLYNNE MCGHEE: … certainly, what we understand is that if those new laws or if that legislation was to pass then we may not be sitting here reporting this story today, because certainly the person who found these documents would be at risk under those laws. As journalists we are potentially also at risk ...

— ABC News 24, 31 January, 2018

Under these new draft laws, journalists could be jailed just for possessing documents that might harm Australia’s national interests.

Does that include embarrassing our leaders—one might ask—or revealing to allies how lax is our security?

And publication would not be necessary for journalists to commit a crime.

Nor is it only reporters who could be jailed. As Peter Greste told the ABC, whistle-blowers and public servants would be just as much at risk:

PETER GRESTE: … if they communicate to a journalist in any way, if they simply send a piece of paper to a journalist with their concerns …

… even if nothing happens to it, both the civil servant and the journalist can find themselves in prison

— ABC Brisbane, Breakfast with Craig Zonca and Rebecca Levingston, 31 January, 2018

And, as The Guardian reports, they could be there for a very long time.

Penalties for breaching the laws would range from five to 15 years’ imprisonment for standard offences, stretching to 20 years for aggravated offences.

— The Guardian, 25 January, 2018

So, it’s no surprise that 14 media organisations – including Fairfax, the ABC and News Corp – have united in protest.

Two weeks ago, in a joint submission to the parliamentary committee on intelligence and security, they argued:

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 ...

— Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 - Submission 9, 22 January, 2018

The media groups also complained about the scope of the proposed crackdown, which is incredibly broad:

The Bill applies to ‘information of any kind, whether true or false and whether in a material form or not, and includes (a) an opinion; and (b) a report of a conversation’.

— Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 - Submission 9, 22 January, 2018

Yes, that’s information of any kind, including opinions.

Perhaps even about the menu in the Border Force canteen?

So why on earth does the government think it’s a good idea to do this?

According to Paul Murphy, head of the journalists’ union:

PAUL MURPHY: It’s the latest in a long series of legislation that’s been introduced under the banner of national security, that’s broad, that’s drafted in such broad terms as to be a threat to free speech and fair public interest reporting.

— ABC PM, 23 January, 2018

And leading Australian journalists agree with him. 60 Minutes reporter Ross Coulthart told The Australian:

‘We are at a state in journalism where the government is using the cloak of national security to attempt to hide their failings, and we are allowing it at our peril.’

— The Australian, 1 February, 2018

This is certainly not the first government attack on media freedom.

In 2014, the National Security Amendment Act introduced jail terms of up to 10 years for journalists who disclosed covert intelligence operations.

Also in 2014, the Foreign Fighters Act provided for journalists to be jailed for up to ten years for publishing news reports or ads that might help terrorists recruit.

And in 2015, the Data Retention Act permitted police to access journalists’ metadata that could reveal their confidential sources.

In each case the Attorney General assured us these tough new laws were not intended to criminalise journalism. And that promise is being repeated for the new law:

… "the bill contains protections for journalists, to ensure that the secrecy offences do not interfere with their ability to engage in fair and accurate reporting in the public interest, even if they have received information in breach of a secrecy offence".

— Buzzfeed, 24 January, 2018

But as former Supreme Court judge Anthony Whealy – now head of Transparency International – told The Australian:

“The law is sufficiently wide to get you and if they’re not intending to get you, why not exempt you?”

— The Australian, 2 February, 2018

Why indeed? Whealy went on to say that offering journalists a ‘public interest’ defence is not the answer:

“The bigger point is why should a journalist have to go through a criminal trial?”
…
“There should be an exemption for journalists acting in the public interest, not a defence.”

— The Australian, 2 February, 2018

Last week ASIO warned that Australia is facing its greatest espionage threat since the Cold War and tougher laws are needed.
But Federal MP and former intelligence officer Andrew Wilkie says that cannot be an excuse for curtailing press freedom.

And we agree.

ANDREW WILKIE: It justifies the government tightening up our laws around foreign espionage and in looking at ways to genuinely crack down on the increasing amount of foreign espionage and influence in this country but it should not be at the expense of whistle blowers and the media because at the end of the day we need whistle blowers in the media to uncover wrongdoing.

— ABC RN Breakfast, 1 February, 2018

And even if there’s a guarantee that journalists won’t be jailed, they won’t be able to do their job properly if the government is threatening to throw public servants and whistle blowers behind bars, for trying to tell the public about politicians’ lies, concealments and mistakes.

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