Counter-terror laws under review – our appearance at COAG


Griffith University colleague Associate Professor Jacqui Ewart (@jacquiewart) and I appeared before the Council of Australian Governments (COAG) hearing into the review of counter-terrorism laws conducted in Brisbane yesterday.

We explained our collaborative research on the subject, and called upon the committee to take account of the importance of free expression, open justice and transparency of process to a democracy like Australia.

The laws under review are listed here.

I began by explaining that national security laws introduced since September 2001 affected the ability of journalists to investigate into and report upon particular incidents, identify and communicate with sources of information for such reportage, preserve the confidentiality of such sources, report fairly and accurately court proceedings related to counter-terrorism, expose miscarriages of justice, and  to draw upon actual examples when covering the broader issues of national security and counter-terrorism.

Australia differed from other democratic nations in that it lacks written constitutional protection of free expression.

I suggested that given the absence of any such free expression protection here, there was a crucial need for public interest or media exemptions to provisions threatening free expression.

Perhaps the committee could appoint an independent adviser or a representative from a body such as the Australian Press Council to review any proposed legislation with an eye to its implications for free expression.

Dr Ewart made the following points in our submission:

When the anti-terrorism legislation was introduced in 2004 and 2005 there was much discussion about the potential impacts these laws would have on journalists and the public right to know about terrorism cases, but much of that discussion was at the time speculation. Since then we have seen demonstrable evidence of the impacts of those laws on the ability of journalists to report on national security matters and to inform the public. These impacts include but are not limited to:

  • Suppression orders are now routinely invoked in terrorism-related court cases to prevent journalists’ from reporting details of cases that may be in the public interest and may not be against national security interests. While there was recently a move towards cooperation between the media and the judiciary in relation to suppression orders (Operation Pendennis court trials under J Bongiorno), this is not standard practice.
  • Sedition laws have restricted freedom of expression in the media. The legal provisions regarding journalists reporting the detention of suspects under the ASIO Act have implications for journalists, and much broader consequences for individuals’ freedom of speech.
  • Media reliance on official spokespeople has increased because of arrest, questioning and detention restrictions once a suspect has been arrested, as evidenced by the controls of information flows by the Australian Federal Police in the arrest and charging of Dr Mohamed Haneef.
  • Recent demands by judges for journalists to reveal their sources of counter-terror stories, evidenced by the making of such demands upon The Australian’s Cameron Stewart regarding leaks from the Federal Police over the Holsworthy Barracks raids.
  • Further to the preceding point, the freezing of information about counter-terror operations by government agencies after the above incident where The Australian published an account of one operation before it started. This led to police/media protocols for future counter-terrorism stories.
  • The potential for the confidentiality of a journalist’s source being compromised through the investigative powers of anti-terror agencies. This may erode the public’s confidence in the media, preventing members of the public from approaching journalists with stories or information.
  • The readiness of counter-terror agencies and prosecutors to make use of raw footage and interview material captured by journalists as prosecution evidence in their cases against terror suspects, as per the Jack Thomas trial.
  •  A warning from an Attorney-General to an academic about his research involving the interviews with suspected terrorists overseas renders journalists’ interviews with terrorists on foreign territory problematic.

We are also unaware of potential problems for those arrested or questioned under the ASIO Act because of the restrictions placed on individuals in relation to telling others including the media they have been arrested or questioned and those restrictions extend to journalists.

This means that the ability of the media to freely – real national security implications notwithstanding – fairly and accurately report terrorism cases has been at times severely hindered by the legislation.

We concluded by recommending the review of the legislation specifically examines the question of the impacts of the legislation on journalists’ ability to cover terrorism cases and terrorism-related court cases, in order to ensure the protection of the public interest in such cases. We provided the committee with an extended explanation in the form of an article on the topic we recently submitted to an international refereed journal.

© Mark Pearson and Jacqueline Ewart 2012

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