…but it’s more complicated than you think
Bernard Keane, Crikey
After weeks of marching in lockstep with the coalition on matters of ‘national security’ (including provisions that would jail journalists –or anyone else –for up to 10 years for revealing secret ASIO operations), a senior Labor politician has suggested it might be useful to debate the proposals rather than passing them with a minimum of scrutiny.
Anthony Albanese said on Sky News Sunday morning:
‘I believe that the media laws, much of them, are draconian. When we talk about potential penalties of five to 10 years’ jail for exposing what might be an error made by the security agencies then I think when people like [Australian scribe] Greg Sheridan, as you say, are drawing it into question, as well as, I’ve had approaches from the media alliance, you know, we are all concerned as Australians about the jailing of Peter Greste in Egypt. Why has he been jailed? Because he was reporting, and therefore seen to be somehow supportive of, these actions.’
But when it comes to the Australian Security Intelligence Organisation’s special intelligence operations’ (or covert ops) provisions of the government’s now-legislated first round of national security reforms, things are a little more complicated than they appear.
The SIO provisions have been in the public domain since mid-2012, when then-attorney-general Nicola Roxon initiated an inquiry by the Joint Committee on Intelligence and Security (JCIS) into a range of national security reform proposals. Current Attorney-General George Brandis is thus quite right to note that these laws haven’t exactly been rushed through Parliament. But the focus at the time was not on the implications of revealing covert operations, but on the fact that ASIO wanted an exemption from prosecution for its officers for any criminal activities they might be involved in while undercover. I made a lengthy submission to the JCIS inquiry in a private capacity, but I confess the issue of revealing information about such operations never occurred to me; I’m not aware of anyone else raising that issue either, although I certainly didn’t read all of the hundreds of submissions made to that inquiry. The JCIS had a better grasp of the issue, however, and understood that ASIO was asking for a similar scheme to the Australian Federal Police’s ‘controlled operations’. JCIS recommended that any such scheme for ASIO be modelled on controlled operations.
‘Politicians also need to understand the threat data retention poses to them: the AFP can go and get their metadata just as easily …’
This is significant, because when journalists raise the possibility of being jailed in relation to SIOs, and when Albanese suggests they need to be wound back, that raises a question of whether the controlled operations laws, too, should be wound back, because a journalist –or whistleblower, or politician –can be jailed for revealing information about a controlled operation, although the penalty for revealing AFP operations is two years, rather than five for SIOs (both have 10-year jail terms for revealing information that harms or is intended to harm an individual or operation). So far, there has been virtually no discussion of whether the existing AFP laws chill free speech or are a threat to journalists in the same way as the ASIO laws do, even though exactly the same concerns could be raised about the abuse of those laws.
As we’ve repeatedly explained, however, there is a signal difference between the ASIO and AFP laws in that –contrary to the original JCIS committee report –there are external oversight requirements for the AFP that don’t apply to ASIO, unless you believe the fiction that the Australian Intelligence Community’s tame, in-house watchdog, the Inspector-General of Intelligence and Security, seriously represents external oversight.
It was the oversight issue that Labor members pursued in relation to SIOs during the recent JCIS inquiry into the draft legislation, unsuccessfully. Labor’s Penny Wong, with some support from South Australian Liberal David Fawcett, also pushed, with more success, for the element of ‘recklessness’ in the relevant offence to be clarified in a way that lifted the threshold for prosecution. But there’s no public interest defence available to journalists in relation to revealing information about an SIO, just as there’s no public interest defence in relation to AFP-controlled operations. The plausible and consistent options to ameliorate the SIO provisions would thus either be to provide like-for-like independent oversight safeguards in relation to SIOs, in line with the original JCIS recommendations –thereby reducing the possibility of SIOs being abused –or inserting a public interest defence in relation to revealing information about both SIOs and controlled operations. The latter would induce a paroxysm of rage from ASIO and the AFP, where there is a very strict demarcation between leaks that serve the interests of the agency and the government –which are never investigated –and leaks that tell people something the agencies don’t want them to know, which are aggressively pursued.
And yet again, it’s important to note that the SIO provisions aren’t the main event when it comes to a threat to media freedom. That belongs to data retention, which is a direct threat to journalists and their sources. It’s also a direct threat to any politician who has relied on whistleblowers to tell them what’s really happening within an organisation. Hopefully those journalists who have criticised the SIO provisions will muster the same energy when the data retention bill emerges from the incompetent clutches of the Attorney-General’s Department in coming weeks –indeed, Laurie Oakes has already done so. And politicians also need to understand the threat data retention poses to them: the AFP can go and get their metadata just as easily as it can a journalist’s, or public servant’s. We look forward to seeing them join the fight.