Limits on media are a blow to the people’s right to know

Illustration: Eric Lobbecke
Illustration: Eric Lobbecke Source: TheAustralian
SECTION 35P of the National Security Legislation Amendment Bill is a terrible piece of legislation that fundamentally alters the balance of power between the media and the government. In doing this, it seriously weakens our democracy and will ultimately weaken, in quite practical ways, our security. It addresses a problem that doesn’t exist. The Abbott government was wrong to propose it and the Shorten opposition wrong to support it. George Brandis and Mark Dreyfus should hang their heads in shame.
Most of the government’s recent national security legislation is sound and necessary. But 35P is a shocker.
It would be difficult for a commentator to be more pro-national security than I am. My admiration for the work of ASIO, the Australian Secret Intelligence Service, the federal police and our other national security agencies is sincere and great. And the need for governments to keep some secrets is evident to everyone but a fool.
But section 35P is a desperately misguided overreaction with potentially sinister consequences.
It provides that anyone who knowingly or recklessly discloses information about a special intelligence operation could face, depending on the circumstances, five or 10 years in prison.
This is one of the worst moves against media freedom that I have seen.
The idea of the legislation is that the identity of ASIO agents working under cover should be protected from media or other revelations. Well, of course that is obvious. It is already an offence to reveal agents’ names.
But this legislation, by design or inadvertence, will massively shift power to government and away from media institutions, which are already much weaker than they were and much weaker than they should be. It was designed by people who either don’t understand how journalists operate in national security stories, or understand perfectly well and want to shift the balance of power unhealthily to government.
One of the profoundly objectionable elements of the legislation is that an SIO, once a government declares it, remains illegal to write about indefinitely, even after it’s long finished.
To take an extreme case — as Bret Walker SC, the former national security legislation monitor, has pointed out — if ASIO accidentally kills someone in an SIO this can never be written about in the media, ever.
Such a scenario will never present itself. ASIO behaves in an exemplary fashion. But we shouldn’t have laws that are manifestly ridiculous.
The real problem with the legislation is organic. Freedom of the press, and democratic accountability, in national security and many other matters, rests on a legal paradox. This paradox is morally complex, often untidy, but unavoidable and necessary in a free society. The paradox is this. Senior public servants, and those who work in security agencies, are bound by confidentiality. But it is not illegal for journalists to receive and publish information they leak.
There is a tiny category of information — such as agents’ identities — that it is quite rightly illegal for journalists to publish. But in general journalists are entitled to publish and be damned. This is not an indulgence for journalists. This is the way democratic societies get to know information that governments don’t want known.
Often, governments don’t want information released because it is embarrassing to them, not because it compromises national security. But even where it damages national security, the prejudice to publish among journalists is rightly strong.
This legislation does nothing to prevent the most damaging types of leaks, such as occurred with Edward Snowden. He knew his leaks were illegal and was prepared for the consequences. He simply dumped millions of secret documents on to his computer and steadily released them. The new laws would make no difference to an Australian Snowden.
I criticised the way the ABC handled Snowden’s revelations about Australian eavesdropping on the Indonesian president, his wife and inner circle. I had no problem with the ABC reporting this, once Snowden had made it public. But I was critical of the ABC turning itself into Snowden’s publicity machine. The ABC’s ­irresponsibility then has contributed to the atmosphere that makes this kind of appalling legislation possible.
Hypocrisy, of course, is widespread. Those figures on the Left now championing free speech were happy to limit free speech by hysterically opposing and demonising the government’s quite modest proposed changes to section 18C of the Racial Discrimination Act. But once you com-promise free speech without a compelling reason in one area, it is easier for your opponents to do so in another area.
This legislation could cripple normal, responsible, national security journalism. I have been a journalist for nearly 40 years. Very often you get a piece of information that a government urges you not to publish. If there are compelling, genuine, national security reasons, most journalists comply. Mostly the government cannot legally stop you from publishing. So, in the absence of compelling national security concerns, you have a hard, hard conversation with government along the lines of this: I’m going to publish this whether you like it or not, you can give me some context and your side of the story or you can leave me to publish what I’ve got.
Through gritted teeth, a government frequently then gives you some background. The result is that the public knows vastly more than would otherwise be the case. People who think such stories are regularly dumped to journalists have no idea what a complex, unpredictable, diverse, exploratory, jigsaw-like business this mostly is. The government now can stop all this give and take simply by telling the journalist they are dealing with an SIO and cannot legally publish. How would the journalist know whether that’s true or not? Most security operations will involve some ASIO dimension, so could be classed as an SIO. Governments thus will have more power than ever to prevent serious, good faith reporting of security matters that may simply embarrass them. The power of governments to declare subjects forever unpublishable is a wicked and extreme power.
One likely consequence is for gonzo journalists to publish without consultation and dare the government to jail them. This horrible polarisation will give governments less ability to influence serious journalism and drive security stories into the hands of extremists, nutters, conspiracy theorists and overseas websites. In time, it will delegitimise national security.
This is drastically bad legislation that should be repealed.