Threatening letters from officialdom chill free expression – @journlaw blog #MLGriff

By MARK PEARSON Follow @Journlaw

[With research assistance from RSF interns Toni Mackey and Eve Soliman]

Intimidating letters sent by two of Australia’s most senior public servants in recent weeks sound alarm bells for free expression and a free media.

The first – from the secretary for the Department of Immigration and Border Protection Martin Bowles – was directed to freelance journalist Asher Wolf following her co-written article for the Guardian Australia on February  19, 2014 titled ‘Immigration Department data lapse reveals asylum seekers’ personal details‘.

The database Wolf had sourced via the Department’s own public website contained personal details of one third of all asylum seekers held in Australia – almost 10,000 adults and children.

The department secretary’s letter implied Wolf had obtained the material on which the article was based by ‘dishonest or unfair means’. She says the data was simply sitting on the department’s website. Bowles demanded Wolf agree not to publish the contents and ‘return all hard and soft copies of the information’ including any her storage devices.

You can view the letter here: WolfDIBP to The Guardian – A Wolf.

And in this 11 minute interview Wolf explains the episode in her own words:

On advice from her lawyers she wrote back, refusing to provide the department with anything and cited her ethical obligation as a journalist to protect her sources. To date there has been no further word from the department since that February 26 reply.

Wolf explained to @journlaw: “The response from the Government was to reframe the issue rather than sort of saying ‘whoops we made a mistake, sorry, let’s fix it up’. It was to frame it as though it had been illicitly accessed, that the confidential information had to be given back, that the files had to be given back.”

The second intimidating letter was to a politician rather than a journalist, but is no less alarming for its potential chilling effect on free expression – and all the more alarming because it involved a military chief writing direct to a senator-elect.

Chief of the Australian Defence Force General David Hurley wrote to Palmer United Party senator-elect Jacqui Lambie on March 7, following the Tasmanian politician’s claims in a media release that sexual abuse in the military was ‘an intractable problem’.

His letter stated he was disappointed she issued a media release before raising her concerns with him and encouraged her to first provide him an opportunity to reply to any such claims in the future. See the letter here: HurleyToLambieLetter

In her response (LambieReply to Australia’s Chief of Defence’s letter of complaint), Lambie – a former soldier – described General Hurley’s letter as disrespectful, condescending and improper.

“For you as the head of our defence force to take the unprecedented and extraordinary step of trying to influence an elected member of parliament by sending a letter with such a patronizing and condescending tone is a disgrace,” she wrote.

She raised the possibility of the letter constituting a contempt of parliament as an improper interference “with the free performance by a senator of the senator’s duties as a senator”.

Of course, that might be too long a stretch, but it is certainly of concern when top military and immigration officials start writing direct to journalists and politicians chiding them for their public statements and implying some wrongdoing on their part.

It is spin and ‘media management’ gone way too far – and is symptomatic of nations far lower down Reporters Without Borders’ World Press Freedom Index than Australia’s.

Both Immigration Secretary Bowles and General Hurley undoubtedly have a host of excuses for penning those letters. Bowles was clearly trying to limit the damage from the privacy leak, and indeed has obligations under the Privacy Act to demonstrate his department has done what it can to retrieve leaked information and minimise any damage caused. Hurley was clearly frustrated by a politician’s insistence on making unspecified claims of abuse when there were inquiries and other avenues for complaints to be made.

But many other strategies were available to them to deal with these issues short of writing stern reprimands from their own desks, directly to a journalist and a politician. The democratic doctrine of ‘separation of powers’ is somewhat blurry in Australia, and it is made all the more so when senior members of the executive engage in public spats with the media and politicians.

I cannot imagine that such high level officials would not realise, or be advised, that their intimidating letters would not reach the public domain. If they thought they would remain secret, then we must ask important questions about how frequently this technique is being used. If they understood their letters would likely go public, then the threat to free expression is all the more chilling.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Filed under free expression, Media freedom, Media regulation, Uncategorized

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