“The parliament has now passed legislation that hands extraordinary powers to the government and its spy agencies while conveniently preventing legitimate scrutiny of those powers. At a time when the parliament should be defending and promoting freedoms in our society it has instead chosen to strip them away,”
MEAA has repeatedly raised its concerns over section 35P of the Bill which imposes a jail term of up to 10 years on journalists for “unauthorised disclosure of information” – criminalising the work of journalists if they receive information about a special intelligence operation, particularly from whistleblowers or “trusted insiders” as the Bill notes in its Explanatory Memorandum. The penalty in the Bill is a jail term of between five and 10 years.
The Explanatory Memorandum makes it clear that the offences outlined in section 35P would apply to “disclosures by any person” and “persons who are recipients of unauthorised disclosure of information, should they engage in any subsequent disclosure”. This would capture legitimate reporting by journalists and media organisations of activities in the public interest. For example, this legislation would have made illegal the legitimate reporting of Edward Snowden’s revelation about the phone‐tapping of the wife of Indonesian President Susilo Bambang Yudhoyono.
Late amendments to the Bill would also apply a “recklessness” test to prosecuting media organisations for publishing or broadcasting information. This is countered by a requirement on the Commonwealth Director of Public Prosecutions “to consider the public interest in the commencement or continuation of a prosecution” but the definition of the public interest from the DPP’s perspective may differ greatly from that of journalists, the media and, indeed, the public.
Warren said: “It is clear that rather than seeing Edward Snowden as a legitimate whistleblower who exposed massive illegal misuse of metadata, this legislation ensures that anyone seeking to also expose wrongdoing by Australia’s spy agencies will be muzzled, unable to get their story out to the wider community despite the obvious public interest, and will be punished with a jail term of up to 10 years.”
The Bill can also deem journalists and their employers to be a “third party” if they interview persons of interest to the Australia Security Intelligence Organisation (ASIO). Consider the example of Australian barrister Bernard Collaery and his allegations that ASIO agents raided his Canberra office and seized electronic and paper files relating to the alleged bugging of the Timor Leste’s government’s Cabinet offices during negotiations for a treaty relating to the Timor Gap. Journalists who interview persons of interest to ASIO like Collaery can be subjected to powers of surveillance, investigation and punishment which may undermine a journalist’s ethical obligations to never disclose the identity of a confidential source. It also sits at odds with shield laws that protect journalists from having to disclose the identity of confidential sources.
The Bill’s new definition of “computer” (to include a computer system or network) has grave implications for people and organisations designated “third parties”. As a third party, the journalist’s computer and their media organisation’s computer network could be monitored, have information taken, and be “disrupted”. The Bill’s overview regarding intelligence collection powers states the Bill enables ASIO to: “obtain intelligence from a number of computers (including a computer network) under a single computer access warrant, including computers at a specified location or those which are associated with a specified person” and the Bill’s amendments also alter “the current limitation on disruption of a target computer”. Under the Bill’s proposed amendments “disruption” can include the addition, copying, altering or deletion of data if ASIO deems it necessary. This can happen to a third party’s computer and/or communications in transit. This again threatens the relationship journalists have with their confidential sources and the preparation of news stories.
MEAA believes the parliament needs to rethink the government’s rushed counter-terrorism measures and allow them to be fully and properly debated with a careful consultation process to ensure that, in the rush to provide government with new powers, cherished and long-defended liberties are not undermined. “At the very least there must be a sunset clause on these extraordinary powers; an improved and rigorous process of independent oversight and review; an understanding that denying the public the right to know what governments do in our name is an appalling assault on democracy; and protections in place to ensure journalists and the media are not treated as criminals for doing their job,” he said.
In a late amendment, journalists now face 10-years’ jail if they identify an ASIO officer. MEAA notes that ASIO has been able to inoculate itself from scrutiny so successfully that any wrongdoing by an ASIO officer could result in two years’ jail but if a journalist reported the officer’s abuse of power, the journalist faces five times that penalty.
“The outcome of this legislation for journalists is two-fold: a muzzle has been applied to the media that will have a chilling effect on legitimate journalism while at the same time journalists will be compelled to resort to the tools and techniques of espionage to protect their news sources and stories from being interfered with by the government and its agencies,” Warren said. “Those two outcomes are not healthy in any democracy. But they are even more galling when the government responsible claims to be implementing these in order to protect our freedoms and our way of life,” he said.
“As Prime Minister Tony Abbott, a former journalist, has said in relation to the arrest, detention and jailing of Australian journalist Peter Greste in Cairo: ‘Peter Greste would have been reporting the Muslim Brotherhood, not supporting the Muslim Brotherhood. Because that’s what Australian journalists do.’ That distinction about the work that journalists do needs to be considered by the Australian Parliament and should have been recognised in this Bill,” Warren said.
MEAA calls on its members, their media industry colleagues and media organisations to campaign to protect press freedom in Australia.
The Labor MP Melissa Parke emerged as a sole voice of dissent among the major parties as the Australian parliament approved a vast expansion of the powers of spy agencies, and criminalised reporting on special intelligence operations.
Parke told the House of Representatives the bill could have a chilling effect on journalism and she warned of the dangers of trading freedom for security.
“I do not support a number of key elements in this bill,” she said.
“Contrary to the reductive argument that says we’re making a straight trade of less freedom for more safety the reality is likely to be and indeed has proved to be many times in the past that constraining our fundamental liberties achieves nothing more than making us less free and in fact does ourselves more harm by licensing the abuse of powers.”
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