New National Security Laws Include A Very Disturbing Attempt To Curb Press Freedom

1 February 2018

In August last year The Advertiser published an article on Australia’s Future Frigate Program based on tender documents that had been leaked to one of its reporters, Tory Shepherd.

If the same thing were to happen in August this year, assuming the new official secrets laws that are part of a major national security legislative package just introduced into the federal Parliament are allowed to pass, Tory and the editor of The Advertiser could well find themselves in jail.

Actually, that’s probably not true. In all likelihood the article would not be published and the public would not be informed that the Government intended to lock our two sovereign and established shipyards, ASC and Austal, out of a significant role in the program, instead inviting a foreign ship designer to do the work in a taxpayer-funded shipyard.

Much of the proposed national security legislation deals with espionage and foreign interference. Subject to scrutiny and some amendments, those proposed laws may enhance our security and bring some transparency to the activities of foreign agents in Australia.

However, the legislation also contains a very disturbing attempt by Government to constrain press freedom.

The legislation criminalises any person who receives, retains, communicates or publishes government information that would cause harm to Australia’s interests.

This harm is defined to include information that would interfere with law enforcement or disclose intelligence information, harm any aspect of Australia’s international relations, prejudice the relations between the Commonwealth and the states (for example, Murray-Darling Basin documents and information) or harm the security or defence of Australia.

To be clear, the information being referred to doesn’t need to have been classified as confidential, secret or top secret.

The legislation has the effect of criminalising every step of publication – receiving, gathering and researching of information, storing it, discussing it, editing it and publishing it.

While a defence exists for journalists doing so in the public interest when engaged in fair and accurate reporting, the defence is narrow and subjective. Any journalist receiving leaked information would need to worry about a possible criminal prosecution.

In Tory’s case, she received what was clearly Defence-related material.

It was marked ‘‘Unclassified’’, but that means little under the proposed legislation. She was aware that access to the same information had been denied to then Senator Nick Xenophon under Freedom of Information (FOI) laws a month or so beforehand.

Indeed, on the day Tory published her article, Defence Minister Marise Payne made it clear in a response to a question in Parliament from Senator Xenophon that she viewed the material as highly sensitive.

She reinforced this view in September in a letter to the Senate stating any disclosure of the tender documents “would have the potential to damage Australia’s national security and defence interests and also our international relations”.

Xenophon challenged the original FOI decision and last week the tender documents were belatedly released.

The Minister has proven to be utterly wrong in her claims.

That would not have helped Tory and her editor as they deliberated over publication, or when they were being handcuffed after publication, had they actually done so with the new laws in place. The Minister, given her incorrect view about the documents, would almost certainly have referred the matter to police.

The secrecy laws before Parliament unreasonably restrict press freedom and SA Best will not support them in their current form.

Journalists keep everyone on their toes – ministers, government officials, judges, and parliamentarians. They expose corruption, ethical breaches, waste, impropriety, unlawfulness, conflicts of interest, perfunctory performance and misfeasance.

But it’s often not that extreme. Sometimes they just encourage debate on policy or, as Tory did back in August, expose bad policy. And she shouldn’t have to go to jail for doing her job.

The legislation needs to be reworked to protect both genuine secrets and freedom of the press, not to protect government ministers and officials.

This piece was published in The Advertiser on 2 February 2018. The online version was published on The Advertiser website on 1 February 2018.

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