Peter Greste appeared before the Independent National Security Legislation Monitor’s (INSLM) review of Part 5.6 of the Criminal Code this week.
He delivered the AJF’s opening statement:
Thank you for this opportunity to make a submission to your inquiry, and appear in person to discuss the issues in more depth.
I am the Executive Director of the Alliance for Journalists’ Freedom, and I am accompanied by Phyllida Behm from Marque Lawyers who helped draft our submission. Our comments are all on behalf of the AJF.
Broadly, we submit that Part 5.6 of the Criminal Code is consistent with a wider trend in Australian law expanding national security powers at the expense of transparency and accountability. We believe the scope and complexity of secrecy provisions in 5.6 have had a significant chilling effect on both potential whistleblowers and sources, and on the journalists themselves. For many, the risks of being prosecuted for disclosing protected information, regardless of the public interest, are simply too high, and the potential costs too great, to call out misconduct or bad behaviour by our agencies.
To be clear, we are not media freedom absolutists. We recognise that our intelligence and security agencies generally act with integrity. We also accept that there are some kinds of information that must not be published because of the harm it would cause to Australia’s national interest. But those agencies are also just as vulnerable to human failings as any other organisation, perhaps more so because they operate in secrecy. And because of the awesome power they wield, they arguably deserve more scrutiny and oversight than most.
The problem with “balance”
In too many conversations, the word ‘balance’ is used to describe the relationship between press freedom and national security.
This implies a binary relationship; that if you have more of one, you necessarily have less of the other. It suggests that if we want more security, we must trade off a degree of media freedom and transparency. We submit that this fundamentally misunderstands the role the media plays in our democracy.
We recognise that there is a tension between these two institutions, but they are not in opposition.
In fact, we believe that generally, media scrutiny makes our government and its agencies work better.
After Richard Boyle disclosed the Tax Office’s debt collection practices in South Australia, the ATO held an internal review and changed its ways. Yet Richard is now facing prosecution.
So, it makes no sense to create a national security regime that damages one of the key pillars of the system it is designed to protect.
We now turn to a few specific points.
Security classifications
Firstly, we do not accept that a public servant’s decision to stamp a document ‘secret’ or ‘top secret’ is a good way to determine harm to the national interest. It is an overly broad and unaccountable way of deciding what should be hidden from public view. It requires us to take the public servant’s word for it.
And even if there may be negative consequences to disclosing some of that information, it does not necessarily follow that it would always outweigh the public interest in publishing.
It makes sense for an ADF official to mark as ‘top secret’ field reports about a series of botched operations that leave unarmed civilians dead. The disclosure of that information would possibly have negative consequences for our security. But if those reports reveal evidence of tactics and procedures that keep killing civilians, then we submit there is an overriding public interest in disclosing them. It would be wrong to reveal the names of the individuals involved, but right to expose the conduct.
We accept that it would be inherently dangerous to disclose some types of information, but that is clearly already set out in the law. You can’t publish the names or addresses of ASIO agents; you can’t publish details of ASD technologies; or raids that the AFP is about to undertake. But for all other information, investigating agencies need to show the harm rather than take it as assumed.
That is also why we believe a journalists’ defence is inappropriate. Currently, a journalist is required to show that they were acting in the public interest, and in the belief that they were acting in the public interest.
Instead, we believe it should be necessary to show actual harm, and that rather than a defence, journalists should be protected by an exemption.
Finally, we acknowledge the internal mechanisms and directives that apparently provide a layer of oversight before a journalist is investigated or prosecuted. But that does not help the system of transparency at all, if the journalists sources – whistleblowers – don’t enjoy the same protections. The ministerial oversight might have helped the ABC’s Dan Oakes from being prosecuted for publishing the Afghan Files, but it has not helped his source, David McBride who is now facing prison time.
The point of advocating for press freedom is not to protect a particular class of individual. Journalists are no different in that regard to any other Australian. The point is to maintain a vital means of monitoring our government and its agencies and keeping the system both honest and effective. That is why we are here today.
Peter Greste
Executive Director
Alliance for Journalists’ Freedom
+61 477 856 845 | [email protected]