Extract from The Guardian
The amended foreign interference bill is better than the original,
but it still threatens our ability to hold governments to account
When
laws are made they become the new normal. They are fiendishly hard to
repeal. That’s why it’s urgent we take a closer look at how the government’s proposed espionage and foreign interference bill restricts press freedom.
We should look again even if we accept the need to update espionage legislation to deal with current day threats, even though this bill is less disastrous for journalism than in its original version and is therefore generating less political heat.
It’s only less controversial because the amended bill has now been accepted by the Labor party and so has the numbers to slide through parliament without registering among all the rest of the shouting. It’s also so complicated that legal experts are still assessing what it means.
But we know it still definitely broadens the circumstances in which journalism can become a crime and therefore still threatens our ability to hold governments and security agencies to account. That’s not something that should be allowed to slide by.
This bill still expands the definition of “national security” to include not just what we would normally think of as security matters but also Australia’s “political, military and economic relations with other countries”, a definition so broad it could mean pretty much anything. So while the government always had some power to charge journalists under the Crimes Act, under the new laws that power extends to a far broader range of reporting.
The bill also increases potential penalties for journalists reporting such information to 10 years in jail. That certainly focuses the mind.
The government says it does not intend to stymie reporting on national security matters. If it really didn’t, it could have exempted journalism from the provisions of the new laws, as demanded by almost every media organisation in the country.
Instead, in a deal with Labor, it announced softening amendments, the most significant being the ability for journalists to use a reasonable belief that a story was in “the public interest” as a defence against prosecution.
That gives some comfort, but for a public interest defence to truly protect public interest journalism we’d have to know how “public interest” would be interpreted and we would have to trust governments would not prosecute if there was a reasonable prospect of the defence succeeding, say for example to stop further publications in an investigation it didn’t like.
Media companies would also need to have enough money to defend themselves if a government did lay charges.
All those propositions are open to very serious question, so the amended legislation is still likely to restrict what media companies feel able to print, even with the new defence.
The government’s explanation for why it did not agree to the media’s request for a straight exemption suggests such a “chilling effect” on reporting might be exactly what it was after.
“The imposition of the evidential burden on the defendant is appropriate because the defendant should be readily able to point to evidence founding a suggestion that there is a reasonable possibility that their conduct was done in the public interest and in their capacity as a journalist engaged in fair and accurate reporting,” the explanatory memoranda state.
“Additionally, requiring the prosecution to prove beyond reasonable doubt that a person’s conduct was not for such a purpose would often prove an insurmountable barrier to a successful prosecution, undermining the deterrent effect of the new general secrecy offences.”
Also, the public interest defence does not extend to a journalist’s sources, or to civil society groups or advocates, an obvious impediment to political debate and to reporting these kinds of stories in the future.
Another amendment says that a revelation would not breach the law if it simply disclosed something that embarrassed the government. A story would have to cause a degree of damage or harm to carry the threat of criminal charges.
That sounded quite reassuring. But the department’s answers to questions from the parliamentary committee state that severe embarrassment could in itself be considered “actual harm”. And it says a story based on a leak (as most security stories are) may also “impact on Australia’s capacity to protect national security or on Australia’s capacity to function in the global political, military and economic environment” and therefore also be illegal. Again, not so reassuring.
Had this amended law already passed parliament, the recent stories by Fairfax and the ABC about alleged misbehaviour by special forces in Afghanistan may have seen the journalists, and certainly their sources, potentially exposed to the new charges and the new, harsher penalties.
Five years ago I was one of the authors of a story revealing Australian intelligence agencies had spied on the Indonesian president Susilo Bambang Yudhoyono and his wife. The story was embarrassing for the Australian government and caused a short-term crisis in bilateral relations, but I firmly believe it was also in the public interest. Under these laws we would have been similarly exposed to criminal prosecution under the harsher laws.
The attorney general, Christian Porter, reckons these laws have to be rushed through parliament next week because of the real threat of foreign interference in the “Super Saturday” byelections on 28 July, although he won’t exactly say who is trying to subvert them or how they might be going about it. That’s a pretty big claim from someone who is asking to be trusted to exercise these broad new powers with restraint.
Surely it would be better to scrutinise this bill properly and fully understand its ramifications, especially since it could undermine our ability to scrutinise so many other things for a very long time.
We should look again even if we accept the need to update espionage legislation to deal with current day threats, even though this bill is less disastrous for journalism than in its original version and is therefore generating less political heat.
It’s only less controversial because the amended bill has now been accepted by the Labor party and so has the numbers to slide through parliament without registering among all the rest of the shouting. It’s also so complicated that legal experts are still assessing what it means.
But we know it still definitely broadens the circumstances in which journalism can become a crime and therefore still threatens our ability to hold governments and security agencies to account. That’s not something that should be allowed to slide by.
This bill still expands the definition of “national security” to include not just what we would normally think of as security matters but also Australia’s “political, military and economic relations with other countries”, a definition so broad it could mean pretty much anything. So while the government always had some power to charge journalists under the Crimes Act, under the new laws that power extends to a far broader range of reporting.
The bill also increases potential penalties for journalists reporting such information to 10 years in jail. That certainly focuses the mind.
The government says it does not intend to stymie reporting on national security matters. If it really didn’t, it could have exempted journalism from the provisions of the new laws, as demanded by almost every media organisation in the country.
Instead, in a deal with Labor, it announced softening amendments, the most significant being the ability for journalists to use a reasonable belief that a story was in “the public interest” as a defence against prosecution.
That gives some comfort, but for a public interest defence to truly protect public interest journalism we’d have to know how “public interest” would be interpreted and we would have to trust governments would not prosecute if there was a reasonable prospect of the defence succeeding, say for example to stop further publications in an investigation it didn’t like.
Media companies would also need to have enough money to defend themselves if a government did lay charges.
All those propositions are open to very serious question, so the amended legislation is still likely to restrict what media companies feel able to print, even with the new defence.
The government’s explanation for why it did not agree to the media’s request for a straight exemption suggests such a “chilling effect” on reporting might be exactly what it was after.
“The imposition of the evidential burden on the defendant is appropriate because the defendant should be readily able to point to evidence founding a suggestion that there is a reasonable possibility that their conduct was done in the public interest and in their capacity as a journalist engaged in fair and accurate reporting,” the explanatory memoranda state.
“Additionally, requiring the prosecution to prove beyond reasonable doubt that a person’s conduct was not for such a purpose would often prove an insurmountable barrier to a successful prosecution, undermining the deterrent effect of the new general secrecy offences.”
Also, the public interest defence does not extend to a journalist’s sources, or to civil society groups or advocates, an obvious impediment to political debate and to reporting these kinds of stories in the future.
Another amendment says that a revelation would not breach the law if it simply disclosed something that embarrassed the government. A story would have to cause a degree of damage or harm to carry the threat of criminal charges.
That sounded quite reassuring. But the department’s answers to questions from the parliamentary committee state that severe embarrassment could in itself be considered “actual harm”. And it says a story based on a leak (as most security stories are) may also “impact on Australia’s capacity to protect national security or on Australia’s capacity to function in the global political, military and economic environment” and therefore also be illegal. Again, not so reassuring.
Had this amended law already passed parliament, the recent stories by Fairfax and the ABC about alleged misbehaviour by special forces in Afghanistan may have seen the journalists, and certainly their sources, potentially exposed to the new charges and the new, harsher penalties.
Five years ago I was one of the authors of a story revealing Australian intelligence agencies had spied on the Indonesian president Susilo Bambang Yudhoyono and his wife. The story was embarrassing for the Australian government and caused a short-term crisis in bilateral relations, but I firmly believe it was also in the public interest. Under these laws we would have been similarly exposed to criminal prosecution under the harsher laws.
The attorney general, Christian Porter, reckons these laws have to be rushed through parliament next week because of the real threat of foreign interference in the “Super Saturday” byelections on 28 July, although he won’t exactly say who is trying to subvert them or how they might be going about it. That’s a pretty big claim from someone who is asking to be trusted to exercise these broad new powers with restraint.
Surely it would be better to scrutinise this bill properly and fully understand its ramifications, especially since it could undermine our ability to scrutinise so many other things for a very long time.
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