From New Dawn 177 (Nov-Dec 2019)
Australian society, as has been its wont for some time, relishes secrecy and surveillance. Forget the laid-back, relaxed demeanour that remains the great fiction of a confected identity; like all such forced assumptions, the slight trace should not be mistaken as the main tendency. The political culture of Australia remains shaped by penal paranoia and indifference to transparency. The citizen is not to be trusted; governments know best. The subject is to be policed and regulated into apathetic submission, convinced that such measures are for the broader good.
As Brian Toohey notes in his latest, sprawling book titled Secret, power has accrued to Australian officials and ministers incrementally through “a succession of new laws and policies” driven by the profane trinity of secrecy, ignorance and fear. These have served to “deprive Australians of basic liberties and increase the risk of being dragged into a devastating war that could escalate into a full-blown nuclear catastrophe.”1
The statute books of the federal parliament are larded with provisions of secrecy that make doing credible journalism in the country, not to mention any of its cognates, nigh impossible. Journalists and scribblers are left to their own devices, inventive as these might be, assisted by the odd prized leak from a source who will, in time, be punished. This is particularly so regarding the public service and public servants, who do not fall within newly enacted laws covering the private sector; they remain the traditional targets of state regulation and punishment.
The leakers, in turn, are offered shallow protections. The public servant must, essentially, keep any whistleblowing confined to the narrowest of circles while following obscured hoops of process within regulated channels. Investigations must be permitted to take place, though these may not lead to any resolution. Patience must be exercised as the most taxing of virtues. This invariably endangers and compromises the whistleblower, rendering information confined that might have greater value in the public domain.
The Australian National Security State has been particularly aggressive in this regard, emboldened by additions to its form since the 11 September 2001 attacks on the United States by the Al Qaeda terrorist group. As the head of the Home Affairs department, Mike Pezzullo, explained with sinister import to a gathering of the Trans-Tasman Circle in October 2017, “The state has to embed itself invisibly into global networks and supply chains, and the virtual realm, in a seamless and largely invisible fashion, intervening on the basis of intelligence and risk settings, increasingly over a super scale and very high volumes.”
Fitting words for the chief bureaucrat of Australia’s dangerously enlarged department that includes, as Toohey notes, ASIO, the Australian Federal Police, the Australian Criminal Intelligence Commission, and the Australian Transaction Reports and Analysis Centre.2 And while such a department flourishes in conspiratorial paranoia in assessing and responding to perceived threats, those monitoring potential abuses within the system, such as the Inspector-General of Intelligence and Security, have found themselves marginalised and relegated to minor importance. “This is not abracadabra,” lamented its current officeholder, Margaret Stone. “It’s not an incantation. It has to be real.”3
The national security state has taken several notable scalps over the years. Individuals such as former customs officer Allan Kessing, who authored two reports on lax airport security, faced a suspended sentence, convicted in 2007 under section 70(2) of the Crimes Act 1914 (Cth). The reason? Disclosing confidential material obtained in the course of his employment even if, in his words, it involved exposing “theft, smuggling and systematic criminality” at Sydney Airport.4 All efforts to either seek a public clearance of his name, or legal remedy, have failed. In a startling note of disingenuousness, Kessing became something of a poster boy for the Labor Party in the 2007 federal election, a figure of inspiration behind a change to the secret state that never took place. As he recalled to Alan Jones, then-leader Kevin Rudd “actually mentioned me by name and promised me there would be reform to whistleblower laws and a pardon would be considered. And neither of which happened.”5
In an even graver and more recent case, David McBride is facing prosecution for theft and three counts of breaching the Defence Act for being a person who, as a member of the defence force, allegedly communicated a plan, document or information to journalists Dan Oakes, Andrew Clarke and Chris Masters. The old official secrets provision of the Crimes Act 1914 has also come into play, meaning that any jail sentence is bound to be a lengthy one.
The central part of McBride’s contribution to the latest flexing of muscle by the national security apparatus centres on the alleged war crimes by Australian special forces in Afghanistan. This came from material obtained by McBride in 2014 at the high-security joint operations headquarters in Bungendore. It led to the publication of “The Afghan Files,” an invaluable source of information on Australia’s flawed military effort in Afghanistan available via the ABC.
McBride fits the blueprint of the complicated, troubled whistleblower, a believer in institutions, yet disturbed by their atrophy and what he insists is an obsession by decision-makers with “opinion polls.”6 It was McBride who proved the figure of inspiration behind raids by the Australian Federal Police in June upon Australian journalists, raids which have revealed the extent the unwieldy security apparatus has grown.
Raiding journalists
On the morning of 4 June this year, News Corp political editor Annika Smethurst was readying to leave for work, only to witness Australian Federal Police bearing down on her home with a warrant. The warrant was broad, essentially limitless. A statement from the AFP subsequently confirmed that it had “executed a search warrant at a residence in the ACT suburb of Kingston today (4 June 2019)” on a matter relating “to an investigation into the alleged unauthorised disclosure of national security information that was referred to the AFP.”7 The AFP “will allege the unauthorised disclosure of these specific documents undermines Australia’s security.” The gravity of the allegations was affirmed in an update that soon followed: “This warrant relates to the alleged publishing of information classified as an official secret, which is an extremely serious matter with the potential to undermine Australia’s national security.”
Within hours, radio 2GB Drive presenter and Sky News contributor Ben Fordham revealed that he was also the subject of an investigation after discussing the attempt of six asylum seeker boats to reach Australia. The story piqued the interest of a peeved Department of Home Affairs official, who proceeded to scold Fordham’s producer for discussing “highly confidential” material in a berating phone call. “In other words,” explained the broadcaster bluntly, “we weren’t supposed to know about it.”8
Over the course of the next morning, with no settling of dust in order, a second raid by the AFP was executed against the Sydney offices of the national broadcaster, the ABC. Those named in the warrant – investigative journalists Dan Oakes and Sam Clark, along with ABC director of news Gaven Morris – were linked to The Afghan Files.9 Australia’s national security state has gotten very busy indeed.
Since Smethurst’s story titled “Let Us Spy on Aussies” broke last year, the security wallahs have been attempting to root out relevant sources, mobilising the AFP in the process. The account detailed information on discussions between the Home Affairs and Defence departments on the possibility of granting the Australian Signals Directorate powers to monitor the emails, bank records and text messages of Australian citizens. Letters between Secretary of Home Affairs Mike Pezzullo and Defence Secretary Greg Moriarty featured. The case with the ABC was even more dubious: as the source was already known to be McBride, the effort to raid the national broadcaster was a crude statement of state power.
Inadequate protections
The modus operandi of any national security state is that any effort to open it up to scrutiny must be resisted. Concessions to openness are bound to be minimal and ineffectual. As a 2016 review by Philip Moss of the Public Disclosure Act 2013 noted, the Commonwealth statute supposedly meant to protect whistleblowers in the public sector has left its fair share of disappointments. “The experience of whistleblowers under the PID Act is not a happy one… The experience of agencies is that the PID Act is hard to apply.” In its application, surmises Stephen Easton writing in The Mandarin, “it is very difficult for a whistleblower to understand the precise sequence of actions they should take to qualify, and there is very little advice or support available to help them meet the criteria.”10
Initial disclosures, for instance, must be made to supervisors, the authorised officer in the agency, the Commonwealth Ombudsman or the Inspector-General of Intelligence and Security. Avenues for external public interest disclosures are narrow and infuriatingly vague. Submissions made to Moss to assist his review were also sceptical about the illusory balance struck in the name of the public interest. “We believe the spirit and intent of the PID is appropriate,” went the submission from the Australian Tax Office, “however the legislation in its current form does not always strike the right balance to ensure serious matters in the public interest are addressed and other matters which are less serious are dealt with under alternate legislation.”11 Various other defects were also noted: how, for instance, to compel supervisors to give public interest disclosures (section 60A) made to them to an authorised officer, and what might be seen to be a serious disclosure as opposed to one not deemed such (section 29).
Jurisprudence referring to the PID has also found it wanting. Federal Court judge John Griffiths called it “technical, obtuse and impracticable” in finding that the Act did not apply to a Parliament House security guard.
Media organisations would like to see parliament shed its conservative skin in this regard, passing legislation that would enhance Freedom of Information provisions, arm press outlets with the means to contest warrants aimed at journalists, furnish whistleblowers with credible protections, and tilt the balance away from the national security grand inquisitor that seems to prevail in Canberra.
This is a tall order indeed given the surveillance infrastructure that is already in place. The Telecommunications (Interception and Access) Amendment Act 2015, passed with bipartisan support, imposes a noxious data retention regime that risks compromising the respect of a journalist’s confidences. The grant of a Journalist Information Warrant permits some 21 government agencies access to the telecommunications data of journalists or those who employ them which are required to be retained for up to two years. This can be undertaken without their knowledge, is unimpeachable in a court of law and has a duration for up to six months. Such measures are political, not legal determinations, granted at the discretion of the Minister, rather than a judicial officer. The test is simple and expedient: warrants will be granted if the public interest in exposing the source outweighs that of keeping confidentiality. To leave such measures of calculation to a political agent is a dangerous gamble indeed.
Those working to a Canberra drum beat might well point out that recent reforms have taken place in terms of protecting journalists. The Smethurst-ABC raids took place in the aftermath of amendments that were meant to ease the sting in what had been archaic official secrets provisions of the Crimes Act 1914 (Cth). These, including those provisions used to punish Kessing, were repealed on 29 June 2018, leaving the way for new regulations dealing with national security information. A public interest defence, found in the National Security Legislation Amendment (Espionage and Foreign) Interference Act 2018, protects those “engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media.” A closer inspection of the provisions shows this to be inadequate for two crippling reasons: the sources remain unprotected, and journalism remains arbitrarily open-ended. (Will, for instance, the modern blogger or citizen journalist fall within such a defence?)
The Act makes the point of covering what is deemed “inherently harmful information”: security classified information; information obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency’s functions; or information on “the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.” A close reading of the legislation shows that leaking sources, and more broadly those informants who supply classified material, cannot avail themselves of any defence. The Law Council’s efforts to convince the federal government to extend the public interest defence to suppliers of the information was rejected, leaving the way open for such cases as Smethurst’s: spare the journalist but attack the source. According to Law Council president Arthur Moses, the protection is shabby, a mere “mirage because it does not cover a journalist’s source.”12 Conduct deemed a contravention of provisions regarding intelligence sources (the publication of names or identity of staff, for instance), does not satisfy the test, nor conduct deemed to assist, directly or indirectly, “a foreign intelligence agency or a foreign military organisation.”
Unchanging environments
Understanding Canberra and the public service is to understand a form of studied stasis, an effort to stymy change. Ideas tend to go there to find cold storage if not expire altogether. The way to keep them in cold storage and throw away the key is to set up an inquiry, with all the baubles and tinsels of cheap accountability. This is the preferred approach of the Morrison government, knowing that such an inquiry will be guaranteed to kill off any reform drive. (Four months should do it: the inquiry is due to report on 17 October.) In his letter to the opposition leader Anthony Albanese, Prime Minister Scott Morrison informed his counterpart that, “The Government is committed to ensuring our democracy strikes the right balance between a free press and keeping Australians safe – two fundamental tenets of our democracy.”13
Knowing the hostility this government and its predecessors have had to the exposure of abuses of state and corporate power, limitations have already been inked. The mechanism being used to ensure only modest changes is to use the Parliamentary Joint Committee on Intelligence and Security (PJCIS), a body of approved politicians who can be trusted to do the right thing by the dictates of secrecy and security. Morrison claims the PJCIS is “well placed to conduct this inquiry given its responsibility for, and experience in, handling issues concerning national security information and legislation.” He would: independent MPs are excluded; contrarians are barred. Whatever qualifications the sitting members will have, their most valued pre-requisite is the capacity for premature adjudication of the problem, adjusted to satisfy the security apologists.
The PJCIS has been one of the most important entities behind approving the shabby Australian national security state, a clumsy creation that does nothing to improve security let alone preserve freedoms. Its members are terrified by the predations of technology and the wilder elements of the Internet. They see any effort to restrain such reach as necessary to protect Australians. Andrew Wilkie, the independent MP more qualified than most to sit on the committee given his background as an officer of the Office of National Assessments, makes the point starkly. “The Labor and Liberal-dominated PJCIS is part of the problem because it’s signed off on every unnecessary security reform in recent history.”14
Wilkie reminds us of the dubious resume of the PJCIS, which features reserve, acceptance of the surveillance rationale, and clay-footedness towards civil liberties. “Who could forget the controversial data retention bill of 2015 and just last year the encryption bill? In both cases the PJCIS recommended some tweaks around the edges, but… recommended the bills be passed, despite the serious concerns about both.”15 While the European Union makes strides against such inefficient and dangerous policies as data retention, Australian governments embrace them with a relish for anachronism, ears bent to the warnings of Duncan Lewis of the Australian Security Intelligence Organisation about the next foreign threat of interference. “It’s constant,” he is reported to have told The Weekend Australian (27 July 2019). “Every day there is a discovery. Some of them are more alarming than others.”16
To permit the PJCIS the means and latitude to decide that balance on press freedom and security would be the equivalent of granting full powers of determination to a taxidermist over your favourite pet. Denis Muller of the Centre of Advancing Journalism at Melbourne University saw this move as appointing foxes the guards of henhouses or giving poachers the means to oversee game-keeping.17
The inquiry hopes to assess, in part, “Whether and in what circumstances there could be contested hearings in relation to warrants authorising investigative action in relation to journalists and media organisations; (and) the appropriateness of thresholds of law enforcement for law enforcement and intelligence agencies to access electronic data on devices used by… media organisations.” A full agenda for reform is guaranteed to be avoided.
Labor, in turn, is trying to shore up its poor parliamentary performance of late in attempting to set up a second, separate inquiry free of the clutches of the PJCIS. That inquiry makes explicit reference to the “public’s right to know and press freedom.” Senator Kristina Keneally, shadow minister for home affairs, notes a prevailing “culture of secrecy and perverting the public’s right to know that has been making its way through this government for too long.”18 In unwittingly casting such stones in the glasshouse, she ignores the record of previous Labor governments with similar leanings towards the national security state. The bipartisan consensus remains unchallenged.
The parliamentary committee has its Canberra compliment of defenders. This is hardly surprising: the national security state will always have its sponsors, ensuring that the narrative is not so much controlled as scotched. Jacinta Carroll, as director of national security policy at the National Security College at ANU, writing in The Strategist (8 July), sees the PJCIS as “the appropriate body to undertake this review, as it’s made up of elected representatives of the people in Australia, and it’s also an established and expert body in the matter at hand.”19 Carroll’s they-know-best tone is schoolmarmish, characteristic of the befuddlement shown by security hacks. She accepts, in tokenistic fashion, that, “A functioning and vibrant democracy is characterised by engaged civil society and informed debate.” As Australian democracy is not vibrant, lacking oxygen for a civil society struggling to fend off the overly keen regulators and over-committed spooks, her observation has little bearing on reality.
Given all that, she still insists, as the inquiry takes place, that all “maintain the focus on being informed about the complexities, nuances and competing interests at play, and not be lured into an oversimplified debate.” Read: let bought parliamentarians seduced by national security briefs and their promoters dictate the balance. The parents of the Australian Security State know best.
Footnotes
1. Brian Toohey, Secret: The Making of Australia’s Security State, Melbourne University Press, 2019, xiii
2. Toohey, Secret, 241
3. Quoted in Toohey, Secret, 244
4. Crikey, 14 Sep 2009
5. 2GB, 6 Jun 2019
6. www.smh.com.au/politics/federal/what-i-ve-done-makes-sense-to-me-the-complicated-colourful-life-of-david-mcbride-20190621-p5204h.html
7. www.afp.gov.au/news-media/media-releases/afp-statement-search-warrant-kingston-act
8. www.news.com.au/finance/business/media/radio-star-ben-fordham-targeted-after-australian-federal-police-raid-political-editor-annika-smethursts-home-over-spy-story/news-story/ee864fd6be6c84dfa108647565c7ee25
9. www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by-australian-special-forces/8466642
10. www.themandarin.com.au/110350-attorney-general-open-to-reforming-obtuse-federal-whistleblower-protection-law/
11. www.pmc.gov.au/sites/default/files/public-submissions/pid/submission-ato.pdf
12. www.theaustralian.com.au/commentary/actions-expose-risk-to-journalism-democracy/news-story/7f20ccaae6301d55b899b4f382b8c6ac
13. theconversation.com/morrison-and-albanese-to-discuss-inquiry-into-press-freedom-119767
14. www.theaustralian.com.au/nation/politics/alp-push-for-press-freedom-committee/news-story/314162de8da318ba97c829f80a098cbd
15. Ibid.
16. www.theaustralian.com.au/nation/defence/espionage-threats-unprecedented-says-spy-boss-duncan-lewis/news-story/e90c51bb103ffd1d536ae7b691671891
17. theconversation.com/parliamentary-press-freedom-inquiry-letting-the-fox-guard-the-henhouse-119820
18. www.theaustralian.com.au/nation/politics/alp-push-for-press-freedom-committee/news-story/314162de8da318ba97c829f80a098cbd
19. www.aspistrategist.org.au/parliaments-joint-intelligence-committee-the-right-body-to-review-press-freedom/
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