Press freedoms: ‘No one is above the law’ is a slogan, not a policy

Jun 10, 2019

On the one hand, Australia lacks media protections of the type found in the US and Europe that enshrine free speech in human rights charters. On the other hand, we may well have more national-security and anti-terror laws than any other Western democracy, with around 70 passed or amended since the 9/11 terrorist attacks on the Twin Towers and the Pentagon. The resulting repressive legal regime gives the executive wide-ranging powers to hide any damaging or embarrassing information by classifying it as secret, and simultaneously to criminalise investigative journalism.

On 4 June, seven AFP officers searched the Canberra home of News Corp’s Annika Smethurst for seven hours. On 5 June, an AFP team rifled through documents at the ABC’s Ultimo office in Sydney for eight hours and ferreted away more than 9,000 electronic files. Smethurst had filed a story last year about a proposal to give unprecedented powers to a federal agency to engage in domestic spying on citizens without appropriate oversight. The ABC’s crime was to have reported in 2017 on possible unlawful killings by Australian commandos in Afghanistan. Both were serious reports on matters of vital public interest. Our beloved AFP clearly do not do irony, to have timed it to coincide so with Tiananmen at 30. The timing was also politically curious in relation the federal election.

In distancing himself from the police raids, PM Scott Morrison insisted that no one is above the law. Such Pontius Pilate-like washing of hands is silly, historically ignorant and demonstrably false.

It is silly because it merely regurgitates a slogan bereft of any policy content or substance. In a testy press conference on 6 June, acting AFP commissioner Neil Gaughan rejected claims that the AFP was ‘trying to intimidate journalists or conduct a campaign against the media. The AFP is a strong supporter of press freedom’. He too took refuge in the defence that everyone must obey the law.

If the law grants the police such unchecked powers, it’s an ass. It is a basic tenet of human nature that if any law can be abused, it will be: some day, somewhere, by someone. Laws are not divine commandments handed down in tablet form from up high but imperfect and fallible products of human minds and pen. They are interpreted and enforced by human beings. Protecting the core values and principles on which our political system is based and operates is the responsibility of the political leadership, not the police. Going by Gaughan’s understanding of the respective roles of the police and press, effectively the police get to decide the legitimate boundaries for journalists. This raises the question: If it begins to look like a police state, quack like a police state, and smell like a police state: when does Australia start bleeding vital democratic organs?

It is historically ignorant because it overlooks the innumerable examples of regimes that have criminalised behaviour and identity that today is perfectly respectable. Authorities acted within the prevailing laws of the time in forcibly taking away children from their Aboriginal families yet one of Kevin Rudd’s few permanent legacies will be The Apology. The Holocaust was the ugly result of criminalising an entire race for its Jewish identity. Apartheid was legal in South Africa and the police were acting within the law in jailing those who defied the hated pass laws, yet few today would take issue with my assertion that the apartheid regime was itself criminal. Gandhi’s first major act of civil disobedience in India was to defy in 1930 the notorious salt tax levied by the British Raj.

It is false because the raids on the ABC offices were in relation to alleged violations of international humanitarian and human rights laws by Australian soldiers. Blowing the whistle on state crimes done in our name is not a threat to national security; only to the reputation of ministers and generals. Let’s not forget also the complicity of both Labor and Coalition governments in prosecuting whistle-blowers who brought to light illegal spying by our intelligence agencies on East Timor in order to benefit a private sector company. Taking this story to The Washington Post gave Richard Butler and me shelter under an extra layer of protection of the big and powerful US media.

‘First they came …’ is a poignant poem by Pastor Martin Niemöller about the inactivity of German intellectuals following the Nazi rise to power and the purging of their chosen targets, group after group: communists, trade unionists, Jews. Because ‘I’ was not a communist, unionist or Jew, Niemöller writes, ‘I did not speak out’. The poem concludes: ‘Then they came for me and there was no one left to speak for me’.

The Australian media can be similarly faulted for failing to speak out in defence of the same principles in the cases of Bradley/Chelsea Manning, Julian Assange (lest we forget, an Australian) and Edward Snowden: duty to expose criminality, a journalist’s duty to protect sources even at the risk of prison, and press freedom. Worse, most seem to have supported their prosecution eve though the information they disclosed was very much in the public interest. Remember the chilling video called Collateral Murder of a US Apache helicopter that killed several journalists in Baghdad in 2007, and then fired on unarmed adults and children in a minivan trying to take the wounded to hospital? That was leaked by Manning and published by WikiLeaks. As Robert Fisk puts it, they helped to expose ‘the cover-up of state crime on a massive scale’.

Of course every government has the right to keep some information and decisions confidential. It does not automatically follow, however, that the government has a matching right to use any means necessary to catch and punish those who leak classified information. For one thing, we know that most ‘leaks’ are in fact by governments for PR purposes, either to show themselves in a good light or to embarrass and discredit political opponents and critics. For another, we know that the first instinct of any government is to conceal information that would be a political embarrassment, even if it causes no harm to national security. Conversely, prosecutions will be fully warranted after publication if this does indeed cause demonstrable harm like loss of life. The easiest way to keep embarrassing evidence secret is to classify them as secret, and criminalise their release by unauthorised personnel, receipt by unauthorised personnel or outlets, and publication. And then to hide behind the slogan: ‘Let the law takes its course, no one is above the law’.

Governments may legitimately conduct a thorough internal investigation to try and discover the source of any leaks. The boundary of permissibility stops inside the walls of government departments. Police should not have the right to search the residential and office premises of journalists and media companies. Well-intentioned bureaucrats and ministers bristle at the suggestion that their actions breach foundational norms of democratic theory and practice. It is easy for them to forget that even if their actions today are done in the genuine belief of protecting our society and polity, they set precedents for the future. If allowed to stand, these precedents will inevitably, as surely as night follows day, tempt their successors in office someday in the future to abuse the powers for purely political, and possibly even criminal, purposes.

If allowed to stand, the raids cannot but have a chilling effect on public disclosures motivated by the imperative to expose conscience-troubling actions inside government. Deniability through a distancing of ministers from police actions is just not good enough. We do not want to pave the first stones on the path to East German, apartheid South African or Soviet style police states. This is why Parliament – and, given the reality of party politics, in practice this means the Senate rather than the House – must conduct a public inquiry into who in the public service authorised the raids. For they are not serving the public but shielding bruised egos.

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