Government, not police, must set the democratic tone

Government, not police, must set the democratic tone
Photo credit: Canberra Times: AFP Officers raiding a Griffith property during the week. Picture by: Elesa Kurtz
Saturday 7 September 2019

By Mark Kenny

In comedy, timing is crucial.

But timing is critical in politics also, where the confluence of events or announcements, whether intentional or accidental, can have a major impact on how things are perceived.

The Australian Federal Police is no Keystone Cops operation, but its timing of late has bordered on the comical.

On Wednesday, literally as journalists gathered at the National Press Club to hear from two of Australia’s finest legal minds on declining press freedom and the ever-expanding security state - officers of the AFP began executing yet another search warrant in the pursuit of a whistle-blower at the Canberra home of a former political staffer turned official.

Dr Matt Collins QC (President of the Victorian Bar Association and the nation’s foremost expert on defamation) and Arthur Moses SC (President of the Law Council) had been invited following previous raids on the home of News Corp journalist Annika Smethurst and the Ultimo headquarters of the ABC.

The two barristers were halfway down the stairs on their way into the direct broadcast luncheon, when the first SMS messages began trickling in to reporters of another AFP raid on another Canberra home.

Deliberate? It was a stunning coincidence if not – reminiscent of the aforementioned raids which came swiftly after the election and within two days of each other. That’s despite the respective warrants relating to entirely different investigations involving incidents many months or even years old.

And all of this while the government churlishly pursues the former intelligence officer Witness K and his highly respected lawyer, Bernard Collaery over an illegal (and frankly unconscionable) bugging operation of Timor Leste by ASIS in 2004.

The muscular post-election pursuit of the source for Smethurst’s 2018 story which had revealed inter-agency discussions over directing external surveillance powers inwards on Australians, and the pursuit of documents held by ABC journalists Sam Clark and Dan Oakes for reporting in 2017 the unlawful actions of special forces in Afghanistan, have been anything but subtle. In fact they’ve had a touch of the Elliot Ness about them.

So what is going on?

Essentially, there are two elements. One is the widening girth of the national security establishment and the powers it demands, and the other is the deliberately officious, even showy, manner of their application.

In his address, Mr Moses noted a “proliferation of statutes with a clear intention by parliament to abrogate [individual] rights and freedoms”.

“Since September 11, about 75 pieces of federal national security legislation have been passed, and there has been a slow erosion of our freedoms. The impact has been creeping, in isolation, barely noticeable,” he said.

Moses went on to argue that the presumption in these provisions was that all disclosure was bad and that the airing of any classified material was ipso facto harmful to the state and the national interest.

 “This has exposed the media because of its role as the fourth estate,” he said.

“Public interest journalism must be protected – disclosure of classified information by the media should only be criminalised of it can be proven to have posed real harm to national security.”

And he argued grounds for prosecution should be more solid “than just embarrassment to government or some bureaucrat being humiliated because of a grand plan to acquire more power has been exposed”.

Doubtless, this was a swipe at the uber-powerful Home Affairs Department Secretary Mike Pezzullo but was not the central point.

Still, Pezzullo himself had implied in testimony to a parliamentary inquiry – the same one in which he stated that the whistle-blower source for Smethurst’s story should definitely go to jail – that the leak had likely been part of a “Canberra game” and that umbrage over perceived departmental empire building was a motivating factor.

"The person who gave [Smethurst] the document broke two confidences. One is they leaked a top secret document and frankly, subject to judicial process and fair process, they should go to jail for that, and secondly it was designed to play into a Canberra game about which agency is asking other agencies to expand its powers or remit and its completely unacceptable for public servants to be playing in that way."

Moses was rightly scathing about any conflation of bureaucratic hurt feelings on the one hand and actual damage to the national interest on the other.

Yet the idea of establishing (presumably ex post facto) whether a given leak caused material “harm” to national security, seems highly problematic in precise legislative terms.

From the government’s perspective, all documents with a classification of Cabinet-in-confidence, secret, top secret, and above, must remain private – in the national interest.

Indeed, Pezzullo also noted in his testimony that he had sighted many thousands of classified documents in his time as a bureaucrat and knew of none where the classification was exaggerated or applied simply to ensure its release was not able to embarrass a government or agency.

He and others, including ASIO, are also worried that any diminution of Australia’s intelligence security could lead to friendly governments either quietly or openly deciding not to share sensitive information for fear it too could be released at a later point.

It is hard to assess how real that risk is, but it must be considered.

From the community’s perspective, with media acting as agents of the public interest (a concept tested admittedly by the staggering news that Nine hosted a lavish Liberal Party fundraiser this week) the occasional exposure of information in the public interest is a vital, nay, essential check on excessive executive power.

Taken together, the raids on homes and workplaces, and the pursuit of an intelligence officer’s lawyer speak to a distinctly illiberal tone.

While it is clear the answer does not lay in ever tightening laws backed up by aggressive police raids transparently designed to intimidate whistle-blowers acting in good conscience and as a last resort, neither is it likely to be found (more’s the pity) in a charter of rights codifying fundamental individual freedoms against an expansive state, given current political realities.

Perhaps greater discretion by governments would help.

It is noteworthy that the prosecution of Witness K and Collaery did not proceed under the former Attorney General George Brandis.

Liberals might want to consider why it has proceeded since? The obvious conclusion is that along with the Smethurst raids and those at the ABC, a message is being sent

One that feels anything but “liberal”.

Mark Kenny is a staff member of the School of Politics and International Relations and Senior Fellow at the Australian Studies Institute, joining the University after a high-profile journalistic career culminating in six years as chief political correspondent and national affairs editor of The Sydney Morning Herald, The Age, and The Canberra Times.

This article first appeared in The Canberra Times.

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Updated:  9 September 2019/Responsible Officer:  Head of School/Page Contact:  CASS Marketing & Communications