Democracy is threatened by the constraints on the media.

I can’t claim ownership of this sanctimonious motherhood statement. It was the opening line of an editorial in The Australian on November 6, 2007, just before the federal election of that year.

It went on to proclaim: “When it comes to media freedom, it should be second to none.”

No qualifications. No caveats. Media freedom trumps everything else.

Now some may disagree with this proposition. This government does. The last government did. The security agencies do, and so do many public servants. So do I, as it happens; in Western democracies no rights are absolute. And so, it seems, does The Australian, with an editorial this week with the headline, “Terror laws protect unity rather than undermine it”.

“GNASHING of teeth about anti-terror measures disrupting social cohesion is often misplaced and overblown…..  As reported today, we now know Islamic State spokesman Abu Mohammed al-Adnani has called on followers to unleash violence against this nation. We need not be apologetic that thwarting this goal should remain our top priority.”

Seven years ago, media freedom was second to none. Now preventing “violence against this nation” trumps everything.

However, there is an interesting backstory to these new laws. Let me take you back to July 2009 and the high-profile anti-terrorism operation Operation Neath that captured press at the time. At that time I was working as an adviser for the then-attorney-general Robert McClelland. Our attention had been consumed by the national Labor conference — Kevin Rudd had gone AWOL  and the Labor delegates at Darling Harbour were at each others’ throats over gay marriage and parallel import arrangements for books. At mid-afternoon during one of the days of the conference, a call came through from McClelland’s media adviser informing us that a journalist from The Australian had found out that raids would be conducted in coming days on suspects’ houses as part of Operation Neath. The journalist had called him and was proposing to go to press the next day. I am not breaking any confidences or committing any offence in telling this story because the events were subsequently canvassed in the Melbourne Magistrates Court.

“It is not the role of journalists to be a cheer squad for government, opposition or any other cause. It is to question, probe and challenge those in authority.”

The concern of the Australian Federal Police and McClelland at the time was that the publication of the information about the raids ahead of time would compromise them by tipping off the suspects. Over the coming hours, the media adviser and other government officials begged, cajoled and pleaded with the journalist to hold off from publishing the story. He wouldn’t be swayed, nor would his pugilistic editor Paul “Boris” Whittaker — now editor of The Daily Telegraph — who aggressively asserted the right of the free press to publish the story. Late that evening, only after Whittaker demanded and received a commitment from McClelland that his paper be given the exclusive about the details of the raid after it was conducted, did he agree to hold the story. Security and law enforcement agencies were furious, but they had little choice but to agree in order to prevent the publication of the story. And so The Australian got its inside story.

It is no surprise that those agencies pushed hard for new provisions in the Australian Security Intelligence Organisation Act 1979 to prevent such an incident occurring again. Yet with the Tele and Whittaker on the morphine drip of stories from the Abbott government, it is also no surprise their tune has changed. Or maybe they are just embarrassed they are the cause of the new laws.

There have been some fine pieces recently written by Katharine Murphy in The Guardian and Laurie Oakes (notably in the News Corp papers) about the failure of most of the media to cast a critical eye over the laws. They are strong reminders that it is not the role of journalists to be a cheer squad for government, opposition or any other cause. It is to question, probe and challenge those in authority. I like Murphy’s analysis of part of the problem:

“Any objective look at the week would present a report card that said: running too fast, filing too much, revealing too little.”

Among Murphy’s and Oakes’ principal concerns is schedule 3 of National Security Legislation Amendment Bill (No. 1) 2014, dealing with so-called “special intelligence operations“. The Attorney-General has broad discretion to authorise such operations by ASIO if he is satisfied on reasonable grounds of a number of factors including that “the circumstances are such as to justify the conduct of a special intelligence operation”.

Those found guilty of disclosing information that relates to such operations face higher jail terms of up to 10 years if the disclosure “will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation”.

The meaning of the term “prejudice the effective conduct” is in the eye of the beholder and the journalist bears the onus of proving that they fall within one of the exceptions to the offence provision.  However, unusually, the onus is upon a defendant, such as a journalist, to prove they did not commit the offence; for example, that a story didn’t prejudice the effective conduct of an operation. It is the broadness of these provisions that is problematic. The offence simply requires that the disclosed information “relates” to a special intelligence operation.

Once again, the actions of News Corp have made it harder for all journalists.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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