TONY WALKER
‘Freedom party’s’ terror laws will have a chilling
effect
PUBLISHED: 27 SEP 2014 04:07:00 | UPDATED: 27 SEP 2014 07:05:20
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The federal government’s proposed national security laws are a terrible piece of legislation from both a media and a
public interest standpoint. Photo: Andrew Burton
TONY WALKER
A bill catapulting its way through the legislative process in Canberra without sufficient opportunity
for public scrutiny carries the anodyne title of the National Security Legislation Amendment Bill
(No. 1) 2014.
Let’s not be fooled by a prosaic description of the bill in an environment in which legitimate
security concerns are deflecting opportunity for reasonable discussion about its implications.
This legislation will be rushed through Parliament this coming week – and will sit on the statute
books like a rotting carcass.
In summary, sections 35P 1 and 2 make it an offence punishable by up to five years’ jail for a
person who discloses information about a security intelligence operation, and up to 10 years for a
person who does so recklessly.
The legislation jacks up penalties for unauthorised disclosures beyond that which is provided for
in the Crimes Act.
Politicians and bureaucrats love this sort of stuff because it enables them to erect statutory walls
behind which they can operate with relative impunity.
No reasonable person would argue that governments – in an environment in which terrorist
threats are real – can disregard operational secrecy, but dangers arise when boundaries are
stretched.
This is a terrible piece of legislation from both a media and a public interest standpoint. Its
passage represents an affront to the government’s own commitment to legitimate inquiry, leaving
aside its tattered free speech crusade.
“Essentially, we are the freedom party . . . freedom’s bulwark against the encroachments of an
unworthy and dishonorable government,” then opposition leader Tony Abbott said in 2012. Well,
maybe!
WEAK PARLIAMENTARY OVERSIGHT
The bill’s penal provisions of up to 10 years’ jail for “recklessly” revealing details of a security
intelligence operation encompasses a definition of wrongdoing that is so ill-defined that almost
any infraction involving publication of unauthorised material in the intelligence and security space
might be actionable.
The legislation will have a chilling effect on reporting of security matters in an environment in
which parliamentary oversight provisions are extremely weak.
Compared with its counterpart organisations in Britain and the United States, the joint
parliamentary committee on intelligence and security is a toothless tiger, restricted to inquiring
about budgets and personnel matters. Unlike its British and US counterparts, the JPCIS has no
authority to delve into operational matters.
That is the domain of the Inspector-General of Intelligence and Security, a statutory office-holder
appointed for five-year terms by the Prime Minister in consultation with the opposition. Few
people would even be aware of the Inspector-General’s existence, or of the office of the
independent monitor of Australia’s national security laws.
Weak oversight arrangements add to the importance of media scrutiny of a secretive state to try
to ensure that abuses are not taking place, especially in this new digital age in which restrictions
on mass surveillance are flimsy at best.
LESS HASTE, MORE REFLECTION PLEASE
It is hard to disagree with a submission by the Gilbert + Tobin Centre of Public Law at the
University of NSW to a JPCIS inquiry into the new security legislation that a “very low standard”
was being set for prosecutions under section 35P.
Politicians may be motivated by the best of intentions – or they may not – but profound changes
to the legal environment in which legitimate inquiry takes place in the public interest requires less
haste and more reflection. A joint submission by media organisations to the JPCIS urged that
section 35P not be included, yet these views got little traction.
The journalists’ union, the Media, Entertainment and Arts Alliance, in a vacuous representation to
the parliamentary inquiry, inexplicably neglected the inequities of 35P altogether.
The Labor opposition has not distinguished itself by meekly going along with section 35P after
toying with the idea of opposing its provisions. Labor is claiming credit for adding the word
“reckless”, but this may be double-edged in the sense that an ill-defined charge of recklessness
would be subjective at best.
Finally, in light of all the above, the case of The New York Times reporter James Risen might be
relevant. Risen has fought off repeated summonses to reveal the source of his revelation in his
2006 book, State of War: The Secret History of the CIA and the Bush Administration, of a
botched CIA operation to sabotage Iran’s nuclear program. Risen has been aided in his efforts to
avoid jail by arguing protection under his First Amendment rights.
Australian journalists would have no such constitutional protection beyond a flickering implied
right to free speech. This is going to be a bad week for Australian journalism – and the public
interest.
Tony Walker is The Australian Financial Review’s international editor.
The Australian Financial Review
BY TONY WALKER
Tony Walker is The Australian Financial Review's dual Walkley Award-winning international editor. He is the
AFR's former political editor. His foreign postings have included Washington for the AFR, and Beijing and Cairo
for the Financial Times of London. He received a Centenary of Federation Award for contributions to Journalism
in 2001 and is a recipient of the Paul Lyneham Award for Excellence in press gallery journalism in 2003.