AFP investigators leave the ABC's Ultimo headquarters (Image: AAP/Bianca De Marchi)

You can’t really go past the media as an industry obsessed with itself. And the AFP raids on Annika Smethurst and the ABC — reinforced by a truculent posturing by acting AFP head Neil Gaughan yesterday — have brought that to the fore. Peter Greste — whose most recent contribution to media freedom was to attack Julian Assange — is calling for a media freedom act to exempt journalists from prosecution in national security cases.

It was like this with data retention: the media ignored the threat of data retention for years before, as the legislation was actually passing in 2015, and kicked up a stink about journalists’ metadata being seized. A “journalist information warrant” process was then cobbled together to provide some nominal protection for the media. Everyone else who was affected by the legislation, however, could get stuffed. There was no media campaign for them.

The list of people needing protection from AFP goons is far longer than journalists. Whistleblowers first and foremost, as whistleblowing expert professor A J Brown noted today. There are greater protections for journalists around the publication of sensitive material now, put in place last year, but none of them protect intelligence officials or national security information.

And the existing protections for public service whistleblowers put in place by Mark Dreyfus when Labor was in power (to her credit, Kelly O’Dwyer established some protections for private sector whistleblowers last year as well) present high hurdles for officials who want to expose wrongdoing. To this end, Samantha Maiden at New Daily deserves credit for keeping the focus this week on whistleblower David McBride, who is facing life imprisonment in another of Christian Porter’s beloved secret trials. 

There are other professions that need protection. Think legal professional privilege protects discussions between clients and their lawyers from being seized by security agencies? Just ask none other than Dreyfus (now to be found advocating for press freedom), who approved ASIO bugging Bernard Collaery and Witness K in 2013. Or ask the Australian Signals Directorate, the agency at the centre of the Smethurst raid, which used its forensic military intelligence skills to go looking for the terrorist threat lurking in… Indonesian trade negotiators talking to their US lawyers about trade negotiations.

At home and abroad, our security services are happy to breach legal professional privilege, and not even for anything to do with national security.

Then there are politicians, especially opposition and minor party politicians, who receive information from whistleblowers regularly. We saw with the 2016 NBN raids that being a politician is no protection against being raided, and there’s certainly no protection against having your metadata taken by the AFP. Not to mention NGOs, activists, community groups and contractors who may find themselves under investigation for handling information embarrassing to governments.

A media freedom act isn’t going to protect any of these — just the people who benefit from their courage. As Crikey argued yesterday, a bill of rights would be a far more effective protection for the wide range of groups that want to hold the government to account.

There are two other structural changes that the raids illustrate the necessity of. One is to empower the Joint Committee on Intelligence and Security. Here, both the Coalition and Labor have proved impediments. Last year Labor stymied a proposal by Centre Alliance senator Rex Patrick to overhaul the committee, after the Turnbull government quashed a similar effort by Labor in 2016. A committee that is less under the control of the executive — by being able to initiate its own inquiries and having unrestricted ability to pursue inquiries into the operations of intelligence agencies and the AFP, and which has some crossbench representation on it — is needed to introduce some oversight of the extensive powers agencies wield.

We need a committee that security agencies are afraid of and resent, in the way that US spy agencies are afraid of congressional intelligence committees.

The other reform, perhaps even more crucial, is to break up the Home Affairs portfolio — at least by removing the AFP and ASIO from it. Intelligence officials are worried that Home Affairs is damaging agencies, that a poison is seeping into them from a portfolio that has contempt for basic freedoms, and which — as the Pezzullo-Moriarty correspondence exposed by Smethurst revealed — wants to expand further into security agencies not already within it.

That contempt was on vivid display yesterday in the threats of Gaughan to prosecute journalists. That’s the toxic influence of Home Affairs wafting into our national police force. And, unchecked, it’s going to get a whole lot worse. 

This is about so much more than just journalism.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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