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See @ConversationEDU for @journlaw’s five reasons the Australian #natsec laws damage media freedom

By MARK PEARSON

The Abbott government’s latest tranches of national security and counter-terrorism laws represent the greatest attack on the Fourth Estate function of journalism in the modern era. They are worse than the Gillard government’s failed attempts to regulate the press.

Unlike most other Western democracies, Australia has no constitutional instrument protecting free expression as a human right. Few politicians can resist the temptation to control the flow of information if the law permits.

Here are five reasons that this latest move is damaging the democratic cornerstone of press freedom:

  1. It is legislative over-reach
  2. It gags reportage of a key public issue
  3. It compromises the separation of powers
  4. It spells the end for the confidential source
  5. Exemptions effectively license old media over new media.

See The Conversation today for the full article.

[Thanks to media freedom interns Jasmine Lincoln and Satoshi Horiuchi for their research assistance.]

© Mark Pearson 2014

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.

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Journalists face jail for reporting intelligence operations – with no public interest defence

By MARK PEARSON

The Australian Government’s passage this week of the National Security Legislation Amendment Bill (No. 1) 2014 is highly likely to impact on Australia’s standing in international media freedom rankings like Reporters Without Borders’ (RSF’s) World Press Freedom Index.

Media Watch cites this journlaw post

ABC Media Watch cites this journlaw post in its 6 October 2014 episode

The legislation amended the Australian Security Intelligence Organisation Act 1979 (‘ASIO Act), and the Intelligence Services Act 2001 (bizarrely abbreviated as the ‘IS Act’).

The new law leaves journalists and bloggers liable to up to five years in jail for ‘unauthorised’ disclosure of information related to a special intelligence operation – and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’ (Section 35P of the ASIO Act).

The legislation seems aimed at whistleblowers like Edward Snowden or Wikileaks, but as Ben Grubb reported in smh.com.au, it casts its net so wide that it relies on the goodwill of the government of the day not to pursue ordinary journalists and commentators if they happen to stumble across such an operation and report upon it.

35P Unauthorised disclosure of information

(1)  A person commits an offence if:

(a)  the person discloses information; and

(b)  the information relates to a special intelligence operation.

Penalty: Imprisonment for 5 years.

Speaking to The Australian’s legal affairs editor Chris Merritt this week, I suggested an operation like that involving former Gold Coast doctor Mohamed Haneef in 2006 might have triggered such a consequence if it had been deemed a ‘special intelligence operation’.

That particular arrest was the result of an Australian Federal Police investigation, but it is not beyond the realms of possibility to see ASIO involved in future such operations.

It was only thorough investigative reporting based upon leaks that led to a Gold Walkley Award for journalist Hedley Thomas at The Australian that exposed the flaws in the prosecution case against Haneef, and led to his later release and exoneration.

While Thomas and other national security writers would not want to compromise an anti-terror operation, you could certainly see them pursuing rigorous reporting of such a matter if a serious injustice appeared to be done or public safety was being placed in jeopardy.

And that is the problem – there is no ‘public interest’ defence available under the laws that have just passed both houses of the Australian Parliament.

Further, there is nothing that would prevent prosecution of a journalist who inadvertently disclosed information about such an intelligence operation in the course of their normal reporting.

I was discussing this today with another Walkley Award winning editor of a regional newspaper who was concerned that an operation conducted in a regional centre would be such big news that it would be difficult not to cover it.

That might well meet the definition of such a disclosure, and the reporters dealing with it would likely not be as well briefed in national security laws as their national and metropolitan counterparts.

Either way, and as I explained to Chris Merritt in that interview this week, the law now presents journalists with a potential new conflict between their code of ethics and the law over which they might face jail.

Journalists have traditionally been willing to go to prison to protect their confidential sources – and in fact three Australian journalists have done time for just that over the past three decades.

Now we have this new situation where some journalists might be willing to defy this new law – and face up to 10 years in jail – if they see an overriding public interest in revealing the nature of such an operation.

If they choose to do so, sadly there will be no defence available to them.

This is just one of a series of detrimental developments for media freedom in Australia in recent months which I have documented previously – all of which are likely to see Australia’s ranking decline in the RSF index which is being compiled over the next two months.

The Australian measures are already on the international radar, as a recent World Association of Newspapers (WAN-IFRA) blog by media academic Julie Posetti demonstrated.

My frank view is that Australia is an ‘emerging Secret State’ – a topic I will be addressing at an upcoming conference marking the 20th anniversary of the Pacific Journalism Review in Auckland in November.

Of course I do not suggest Australia is at the far end of the spectrum like North Korea, China or Vietnam. We do not have the licensing of journalists or the jailing or torture of those opposing the government’s line.

However, when compared with other Western democracies we do not have the safeguards of free expression protections in a Bill of Rights or in a major constitutional amendment as in the US.

Sadly, this means new gags like this measure can be rushed through Parliament by a government seeking a tougher anti-terror image and an Opposition fearful of being seen to go soft on national security.

© Mark Pearson 2014

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.

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Media freedom concerns over federal demands for ABC interview tapes

By MARK PEARSON

[Research assistance kindly provided by media freedom intern Mardi Reason]

JUST as the Australian Government proposes tougher national security powers for its agencies and penalties for whistleblowing we have learned this week that the Australian Federal Police has asked the ABC for unedited current affairs interview footage in its pursuit of a former spy and a lawyer.

Screen Shot 2014-09-04 at 7.57.38 PM

Senator Nick Xenophon’s questions of Attorney-General George Brandis about AFP investigation.

Attorney-General George Brandis confirmed in the Senate on Monday (see inset) that Australian Federal Police started an investigation into the sources of leaks of classified information after it was revealed Australia spied on East Timor during sensitive oil and gas treaty negotiations.

The targets of the investigation are reported to be lawyer Bernard Collaery (a former ACT Attorney-General now in London about to represent East Timor in The Hague) and a former Australian Secret Intelligence Service (ASIS) agent who was allegedly the whistleblower.

The Australian Security Intelligence Organisation (ASIO) raided Collaery’s Canberra office last December and seized documents.

Tom Allard reported in the Sydney Morning Herald on Monday that the latest investigation had prompted requests from the AFP for the raw footage of Mr Collaery’s interviews with programs including 7.30, Lateline and Four Corners.

A report by Conor Duffy on 7.30 last December also featured actors’ voices reading an affidavit from the former ASIS agent which the Herald has speculated could be important evidence the AFP needs for its investigation into the identity of the whistleblower.

However, in the Hansard record of Senator Brandis’ comments on Monday (inset), the Attorney-General claims there are some inaccuracies in the Herald report. In particular, he claims it is inaccurate that he ordered the AFP investigation. Rather, it was ASIO-driven, he told the Senate.

As reported earlier at journlaw.com, the Australian government introduced the National Security Legislation Amendment Bill (No. 1) 2014 on July 14 which would extend security agencies’ powers to search and use surveillance devices in the new communication environment, introduce a new ‘multiple warrants’ regime, offer immunity to intelligence personnel who break all but the most serious laws, while increasing penalties for whistleblowing and criminalising the reporting of leaked intelligence-related information.

Importantly, it would introduce a new offence carrying a five year jail term for anyone disclosing information relating to special intelligence operations.

This latest episode demonstrates how easily journalists and media organisations can get caught up in such investigations. It threatens to expose them to contempt penalties if they refuse to co-operate and will inevitably make sources reluctant to talk to reporters covering the important round of national security, particularly as it coincides with a push for even greater surveillance powers for federal agencies.

Sources:

Allard, T. 2014, ‘Government wants East Timor spy charged’, The Sydney Morning Herald, 31 August 2014, http://www.smh.com.au/federal-politics/political-news/government-wants-east-timor-spy-charged-20140831-10aoad.html

Safi, M. 2014 , ‘Timor-Leste spy case: Brandis denies referring lawyer to police’, The Guardian, 1 September 2014 http://www.theguardian.com/world/2014/sep/01/timor-leste-spy-case-brandis-denies-referring-lawyer-to-police

Fernandes, C. 2014, ‘Our land is girt by oil-rich sea … that we steal from East Timor’, Crikey, 2 September 2014 http://www.crikey.com.au/2014/09/02/our-land-is-girt-by-oil-rich-sea-that-we-steal-from-east-timor/

Commonwealth of Australia, 2014, September 1 (14:32). Hansard. Parliamentary Debates – Senate. Questions Without Notice – East Timor. (Senators Xenophon and Brandis). http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansards/49cdeae9-b762-449e-9e05-7239b8940f5f/0044/hansard_frag.pdf;fileType=application%2Fpdf

© Mark Pearson 2014

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.

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Australian Government’s latest national security bill to stifle debate

By MARK PEARSON

The Australian Government has opted for censorship and secrecy over scrutiny and natural justice with its latest national security bill introduced in the Senate last week.

haneefcover

Haneef – A Question of Character, by Jacqui Ewart

The National Security Legislation Amendment Bill (No. 1) 2014 extends security agencies’ powers to search and use surveillance devices in the new communication environment, introduces a new ‘multiple warrants’ regime, offers immunity to intelligence personnel who break all but the most serious laws, while increasing penalties for whistleblowing and criminalising the reporting of leaked intelligence-related information.

Australian Attorney-General George Brandis introduced the legislation on Thursday (July 17).

The crucial section affecting journalists and bloggers is straightforward:

35P Unauthorised disclosure of information

(1)  A person commits an offence if:

(a)  the person discloses information; and

(b)  the information relates to a special intelligence operation.

Penalty: Imprisonment for 5 years.

It continues to set a 10 year jail term if the disclosure is deemed to “endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.” A selective list of exemptions makes no mention of material being published in the public interest.

The provision is clearly aimed at preventing Wikileaks or Snowden-style leaks of recent years and their broad publication in the world’s media and across social media, to the embarrassment of governments including Australia’s.

As I detailed in my recent Walkley Magazine article, ‘Terror on the books’ (May 29, 2014), Australian governments from both Labor and the conservative parties have contributed to the enactment of more than 50 pieces of legislation at national level (and many more at state level) since the 9/11 terrorist attacks on the US, many of which have impacted free expression and reportage. Colleagues Dr Jacqui Ewart, Joshua Lessing and I detailed this trend in a recent article in the Journal of Media Law.

The Haneef case in 2007 showed how national security laws could be used to restrict media access to information in an anti-terrorism matter. In that case, the accused was ultimately acquitted after a leak to the media showed how little evidence there really was against him. If this new law was in place, journalists might face jail for reporting such an injustice.

The proposed law is so draconian that it has prompted a release from Paris-Based Reporters Without Borders.

Without a bill of rights or constitutional amendment to protect free expression or media freedom in this country, it is left to those who care about free speech to make their objections clear. Please write to the Federal Attorney-General at senator.brandis@aph.gov.au opposing this legislation. Please also make submissions stating any concerns to parliamentary committees reviewing the legislation when it reaches the committee stage. Sadly, in Australia there will be no formal review of the free expression implications of the bill.

© Mark Pearson 2014

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.

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Maintain the rage: support for Greste heartening, but needs to be escalated. Sign up. #FreeAJStaff

By MARK PEARSON

Additional research by journalism student MELANIE WHITING

AS Australian journalist Peter Greste languishes in an Egyptian jail just three weeks into his seven year sentence for simply doing his job reporting for Al Jazeera, it was heartening to see friends and colleagues rally in his support in Melbourne yesterday (July 14).

Clearly, the problem faced by all such political prisoners is that pressure for their release can diminish after their initial sentence disappears from the news agenda.

Almost 11,000 people have now signed the Canadian Journalists for Free Expression (CJFE) petition for the release of Greste and his colleagues, which will be sent tomorrow (July 16). Please go to http://www.thepetitionsite.com/583/945/591/fr/ and sign it.

In the days following the verdict political leaders including US Secretary of State John Kerry and Australian Prime Minister Tony Abbott expressed shock and condemnation over the Egyptian court’s decision on June 23.

Labor foreign affairs spokesperson Tanya Plibersek has been supportive and Greens leader Christine Milne has called upon the Abbott Government to escalate its diplomatic efforts on Greste’s behalf.

Media companies, unions and free expression groups have been united in their push for the release of Greste and his Al Jazeera colleagues.

Representatives of News Corp Australia and Fairfax Media told AdNews they saw the  sentence as a threat to press freedom.

The Media Entertainment and Arts Alliance (MEAA) issued a statement on their website condemning the verdict and maintained that Greste had acted as an ethical and responsible journalist.

A group of top international journalists united to send a letter to the Egyptian President asking for Greste and his colleagues to be released.

Petitions are important, so please sign any or all of these:

Go ahead – please sign them all NOW!

[The MEAA petition at http://www.alliance.org.au/peter-greste-petition has now closed.]

© Mark Pearson 2014

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.

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National security and anti-terror laws continue to threaten journalism

By MARK PEARSON

* This article was first published as ‘Terror on the books’ in the Walkley Magazine on May 29, 2014.

Walkley

More than 50 anti-terror laws have been introduced by the Australian government since the September 11 attacks in the US in 2001, and they continue to impact on our coverage of national security issues and place journalists and their sources at risk.

No Australian journalist would want to see lives lost in a terrorist attack, but there is evidence that existing laws give police, security agencies and the courts too much power in monitoring media activities and suppressing reports that are in the public interest. Two major reports now confirm some of these existing laws are over-reaching.

The long overdue Council of Australian Governments (COAG) Review of Counter-Terrorism Legislation was released in 2013.

As well as recommending changes to basic definitions of terrorist threats and harm, it proposes there be more opportunity for judicial reviews of the agencies’ search and seizure powers, and introducing some safeguards to the control order system (a control order restricts where a person goes and who they can meet).

The committee suggested that the communications restrictions be eased to allow a person subject to a control order access to a mobile phone, a landline phone and a computer with internet access.

Most importantly for journalists, the review recommended the repeal of Section 102.8 of the Criminal Code dealing with “associating with terrorist organisations”. This reform would put beyond any doubt the likelihood of a journalist being convicted of this serious offence by just undertaking normal reporting duties.

Another major report came in November 2013 from Bret Walker SC, the Independent National Security Legislation Monitor (INSLM). It was his third report since being appointed to the review role in 2011.Walker repeated his earlier recommendation that ASIO’s questioning and detention warrants should be abolished and suggested improvements to the definition of a “terrorist act”.

He called for a simpler system of listing terrorist organisations and inserting an exception to the “associating with terrorist organisations” provisions for humanitarian groups such as the Red Cross.

While both reports focused on issues of natural justice and human rights, neither the COAG review nor the INSLM addressed the stifling of journalism in the anti-terror laws.

Sadly, there was little in the way of media lobbying to do so either. The COAG counterterror review received 30 submissions which it posted to its website, none of which were from media-related companies or journalism or free expression organisations.

The ripples of international security operations were also felt in Australia. In 2013 the Media, Entertainment & Arts Alliance wrote to Prime Minister Tony Abbott asking for a review of the extent of metadata surveillance conducted by governments in the wake of former US National Security Agency (NSA) contractor Edward Snowden’s revelations.

There was good reason to be concerned. At least three cases in recent years have shown how the confidentiality of journalists’ sources can be compromised by surveillance by security agencies or anti-terror operations.

The retrial of “Jihad” Jack Thomas on terrorism charges in 2008 was based partly on interview materials gathered by Sally Neighbour from Four Corners and The Age’s Ian Munro and subpoenaed by the prosecution.

It emerged in the trial that up to 20 telephone calls between Neighbour and Thomas had been monitored by an ASIO agent.

The issue of confidentiality of whistleblowers’ identities also arose in the aftermath of the convictions of the Holsworthy Barracks bomb plot conspirators in 2011. The Australian had published an exclusive account on the raids in the hours before they occurred. (The three convicted plotters lost their appeals against their 18-year jail sentences last year.)

The Australian’s Victoria Police source, Simon Artz, paid for his leaks to the newspaper in the Victorian County Court with a four-month suspended sentence for unauthorised disclosure of information.

It was not a good year for whistleblowers internationally. WikiLeaks founder Julian Assange is holed up indefinitely in Ecuador’s embassy in London as he avoids extradition to Sweden on sex charges (and feared extradition to the US over security leaks). His US Army source – Private Chelsea (formerly Bradley) Manning – was sentenced by a military court to 35 years in jail for leaking classified documents. Meanwhile, Edward Snowden had fled to Russia to avoid prosecution over his leaks.

The whistleblower’s revelations about the extent of government surveillance continue to cause embarrassment, including in Australia where Prime Minister Tony Abbott reacted by attacking the ABC over its reportage. In an interview in early 2014, Abbott voiced his disapproval that the ABC had run stories about security services eavesdropping on Indonesian leaders’ phone conversations, a fact revealed by Snowden’s leaks.

The ABC then faced an “efficiency study”. It seems the Abbott government’s approach is to put the budgetary microscope on the ABC’s operations rather than wind back national security laws in the interests of media freedom.

The suppression of reporting on terrorism-related trials or evidence tendered in national security cases is an ongoing issue. The use of a closed court – combined with government media management – was central to the misplaced prosecution of Gold Coast Hospital registrar Dr Mohamed Haneef in 2007.

More than 30 suppression orders under anti-terror powers were imposed during the Benbrika trials in 2008 and 2009. In that case, Abdul Benbrika and 11 other Muslim men from Melbourne were charged with intentionally being members of a terrorist organisation. Their arrests in 2005 followed Operation Pendennis, a 16-month surveillance operation by Victoria Police, the Australian Federal Police and ASIO.

While by 2014 legislation covering suppression and non-publication orders had been introduced into only the Commonwealth, New South Wales, Victorian and South Australian jurisdictions, it appears that other states and territories are following suit to harmonise the laws.

© Mark Pearson 2014

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.

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Journalists revert to age-old methods to protect sources, says @camstewarttheoz

By MARK PEARSON

National security reporter and associate editor at The Australian Cameron Stewart (@camstewarttheoz) says investigative journalists have to leave their smartphones back at their office when they are meeting confidential sources.

Stewart said the surveillance powers of national security agencies under anti-terror laws, combined with the geo-navigational features of Web 2.0 technologies, meant investigative reporters were reverting to 1970s techniques like those of Watergate reporters Carl Bernstein and Bob Woodward used when they met their famous source ‘Deep Throat’ in an underground car park.

“That is actually still the best way to get your information,” Stewart told me in the interview below.

“The thing I’ve got to my ear now [a smartphone] is your biggest enemy in every single sense as the Snowden revelations have shown.

“The ability of authorities to track movements of journalists is really of great concern as far as protecting sources goes.

“What they’re doing is quietly authorising metadata searches and things like that. What that does is give them every phone call you’ve made and I think they can piece together through your iPhone for example what your movements are over time.

“It’s not rocket science to work out what your movements are over a certain period of time and who you’ve been speaking to and who sources might be.”

Here Cameron Stewart talks with Professor Mark Pearson of Griffith University (@journlaw) about the impact of anti-terror laws on the reporting of national security issues. Stewart shares some of the methods he uses as a reporter when dealing with off the record information provided by whistleblowers  [15 minutes, recorded 1-5-14]

© Mark Pearson 2014

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.

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