Upated laws protecting a specific type of ASIO undercover operation do not "threaten free speech". Indeed they help preserve it. Particularly by strengthening ASIO's ability to mount the type of security-intelligence operation - within and against extremist groups - that is occasionally necessary to preserve the constitutionalism and liberty of any liberal-democracy. Incorrect, sensationalist and biased media claims about the legal reforms reflect serious failings in the objectivity of modern journalism, and the commercial practices driving this decline in professionalism, institutional integrity and objectivity.
As with most countries, Australia has long had laws prohibiting the unauthorised disclosure of key national secrets.
In 2010, Section 15KH of the Crimes Act was enacted to protect a specific and well-defined type of undercover crime-fighting by the AFP. A similar provision has now been enacted to protect the same type of operation by ASIO.
Given the nature of the media’s contributory role in preserving our liberty, some concern about new secrecy laws is understandable.
But surely not the widespread subjectivity, and even scaremongering, displayed in many media claims about the new laws. Particularly as those applying to the AFP generated no serious controversy and, as yet, their deterrent effect has resulted in no need to prosecute anyone.
Notably absent has been self-awareness that the political or official tendencies to cover embarrassing things up, including invoking national security improperly, have several persistent corollaries in modern media practice.
Virtually all media discussion misses four key points.
- National secrecy laws necessarily apply to every Australian, and journalists are not, and should not, be somehow immune.
- Updated laws are only necessary because modern commercial and social media practice no longer reflects such civic responsibilities.
- The type of operations covered is very specifically defined, and subject to significant statutory, practical and independent protections against potential abuse.
- Penalties are carefully graduated, depending on the severity of the malicious intent or extent of the recklessness involved.
Media objections have instead been largely based on incorrect assumptions that all ASIO operations are or might be redesignated “special” to avoid legitimate public scrutiny.
As with AFP controlled operations, this is simply not true. ASIO special operations involve only undercover infiltration of groups where preserving the life of an operative, then and subsequently, is paramount.
They also provide specifically authorised operatives with legal immunity where the need to preserve their cover may involve them having to join in certain illegal acts by the group infiltrated – with the safeguard that serious crimes such as murder, rape, assault and torture are not included.
Hyperbolic claims have even been made that notable historical reporting would have been barred by such new laws.
But Sir Keith Murdoch’s war reporting from Gallipoli and the botched 1983 ASIS exercise (not operation anyway) at Melbourne’s Sheraton Hotel involved no undercover aspects within a hostile group. Nor did the arrest and detention of Dr Mohamed Haneef.
Even premature reporting of the police raids to arrest those plotting to attack Holsworthy Barracks, or discussion of the Snowden leaks, would not have been prohibited. Although in the latter case some of it should clearly not have been reported anyway, or reported much more responsibly, to preserve long-term national interests.
Media complaints particularly ignore media complicity in undermining the effective balance between preserving national secrecy and public scrutiny that any democracy needs.
Up to the early 1980s, reporting on Australia’s major national secrets was effectively protected by the voluntary D-notice system.
There were only four of them: the detail of Australia’s air defences, the specific operations of ASIS and DSD (now ASD), and the whereabouts of the Petrovs.
Based on World War II and early Cold War experiences, media proprietors and the government agreed that reporting on such matters would not occur, or would only occur with extensive prior consultation, to limit damage to the overall national interest.
This system eventually broke down. General causes included growing media diversity, the rise of the Web, the increase in political polarisation between media groups, and the decline in numbers and influence of journalists with wartime or other direct experiences of the implications of security breaches.
More specifically, the decline of professionalism within journalism also contributed. By definition, professions exercise discipline among themselves. But unethical or other unprofessional journalism is now not only rarely if ever punished professionally, it is increasingly rewarded commercially.
Unthinking breaches of genuine strategic and operational security matters now occur widely in commercial and social media practice. That so many are in denial about this emphasises the extent of the problem.
Finally, just as politicians or officials might improperly invoke the national interest to prevent or limit discussion of merely embarrassing matters, very few journalists seem to acknowledge reciprocal risks.
- The juicier the story, or the greater its exclusiveness, the higher the risk of losing objectivity about genuine national interest considerations.
- Journalists alone, and the media by itself, are very rarely equipped to judge what might identify, weaken or destroy real national secrets.
- Breaking a story or protecting sources can work against commonsense checks and balances, such as consulting those outside journalism who actually understand the long-term implications.