The terror law trap

New national security legislation in Australia restricts the ability of the media to report on matters of public interest and – despite denials to the contrary – still holds the threat of jail over the heads of media employees for simply for doing their job. ELIZA GOETZE and WILL MUMFORD report

The terror law trap

Few laws have raised as much concern in the media industry as the series of national security laws that currently are in various stages of passage through the Australian Parliament.

The bills carry provisions that mean journalists or even telephone ad receptionists could face the threat of jail for breaches and have led to two joint submissions by Australian publishers and broadcasters seeking urgent changes, as well as prompting international protests.

In one of the submissions to the parliamentary joint committee on intelligence and security, the media groups wrote that parts of the new legislation would “erode freedom of communication and freedom of the media”. Both submissions were co-signed by The Newspaper Works along with its founding members APN, Fairfax Media, News Corp and West Australian Newspapers, and organisations including Australian Associated Press, ABC, ASTRA, Bauer Media, Commercial Radio Australia, FreeTV, MEAA and SBS.

The companies’ view was supported by the board of the World Association of Newspapers and News Publishers (WAN-IFRA), which called on the Australian government to review the first tranche of the legislation on the basis that it may reduce “the media’s ability to report on matters of public interest”.

Lawyers, academics and media representatives have expressed similar fears, but the government has refused to budge on the main thrust of the legislation, suggesting that journalists are “not targeted” and the jailing of media employees “would never happen”.

The first tranche, which has passed both Houses despite the media companies’ protests, is the National Security Legislation Amendment Bill (No 1). It prohibits journalists from reporting any information that relates to a special intelligence operations (SIO), now or in the past – even if it involves illegal action, or is botched. It carries penalties of five years for the disclosure of SIO-related information and 10 years if that information can be considered “to prejudice the effective conduct” of a SIO or endanger the health and safety of any person.

A second piece of legislation currently under review in the Senate, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, contains provisions that would make it an offence to publish an advertisement or news item that could be considered for the “purpose of recruiting persons to serve in any capacity in or with an armed force in a foreign country”. The list of offences relates to the publication of potential recruitment advertisements, and all carry punishments of 10 years imprisonment.

Media companies are concerned that this could rope in receptionists who take classifi ed advertising or journalists who might write a report of an event in good faith that later is deemed to be for the purposes of recruitment.

Publishers argue in their submission on this tranche that the provisions of the Act are so broad that the penalties could apply even if conduct is deemed not to be reckless, although Bret Walker SC, a former national security monitor, disagrees. Mr Walker said that, as is the case with the National Security Legislation Amendment Bill (No. 1), publishers would be protected by the fault element provision if breaching these laws unknowingly.

It is this gulf in interpretations that is a primary concern.

One section of the Foreign Fighters Bill would see penalties of two years’ imprisonment that could be issued to anyone who discloses information regarding the application for, or execution of, a delayed notification search warrant. Like the SIO amendments, this has drawn widespread condemnation from media organisations because of its potential to prevent reporting in the public interest.

After reviewing the submission on this Bill, the parliamentary joint committee rejected points made by media companies over offences for the publication of recruitment advertisements, saying the committee did not receive sufficient evidence to support their concerns.

The committee pointed out, however, that the key elements of the proposed offences were taken directly from section 9 of the existing Foreign Incursions Act. “Given this Act has been in operation for many years without problems occurring in this area, the committee does not consider further amendment is required,” it said.

This means that the jail penalties are in two acts, once the relevant sections of the Foreign Fighters Bill become law.

Yet the committee made no acknowledgment in its recommendation that the risk of recruitment for foreign armed forces was far greater today than it was in the past, with Australian citizens fighting with terrorist forces in Syria and Iraq, and urging others to join them.

In terms of delayed warrants, the committee made some concessions in terms of public interest. It recommended that the explanatory memorandum and the Bill be amended to confirm that the Commonwealth Director of Public Prosecutions must take into account the public interest, including the public interest in publication, before initiating a prosecution for the disclosure of information relating to a delayed notification search warrant.

This means that once a prosecution has been launched, after public interest consideration by the DPP, anyone charged under the Act would have no recourse to public interest as a defence.

The Newspaper Works CEO Mark Hollands said that when democratic freedoms were seen to be at risk, “we must always ensure our response to their defence is not to actually diminish these freedoms”.

“Unfortunately, the threat of jail for journalists and other newspaper executives for up to 10 years for publication of an article or an advertisement appears to be just such a response.”

Mr Hollands said that journalists should have the right to report in the public interest without fear of a jail sentence or the compromise of their confidential sources.

WAN-IFRA secretary general Larry Kilman said the lack of provisions in the National Security Legislation Amendment Bill to protect legitimate journalism was of major concern.

“Journalism is not terrorism – and it is particularly a problem when developed democracies adopt such measures,” he said. “It encourages repressive regimes, who use such laws as justification for their own abuses. It sets a bad example.

“Quite simply, such measures must ensure that journalists and journalism are protected, and that legitimate journalism in the public interest should be exempted. Journalism should not and must not be criminalised.

“Unfortunately, given the current state of aff airs in the world, such legislation is becoming more common,” he said, “but the Australian law is particularly onerous for its complete disregard for journalism.”

Fairfax Media general counsel Gail Hambly said her staff was anxious about the possibility of jail becoming a real threat and that the business would also suffer under new pressures.

“If we have to live with the new laws, then obviously we’ll need to train journalists, we’ll need to train advertising people,” Ms Hambly said.

“If we need to train people, there is an expense that goes along with that.”

Ms Hambly also was concerned over laws being exercised without proof of intent, as there was no way of knowing, initially, whether an ad was for foreign recruitment or not.

A third tranche of national security measures concerning data retention is expected to be tabled in the coming weeks.

Fears over press freedoms

Outside of jail penalties outlined in the national security legislation, there are public concerns over the restrictions the laws could place on the freedom of the press.

Barrister Bret Walker SC said the most significant problem with the National Security Legislation Amendment Bill was that it could further discourage whistleblowers from reporting potentially illegal practices.

“The very important question is that as with so many other secrecy provisions in Commonwealth and Australian laws generally, we don’t really have a very comprehensive or very robustly supported whistleblower provision,” he said.

Australian Press Council chairman Professor Julian Disney, said the new laws would require increased oversight and suggested the introduction of a public advocate that could argue a public interest case to the inspector general, and would be privy to the same intelligence that the inspector general would receive from ASIO and the government.

“The inspector general shouldn’t have to be just the voice arguing against too much security, too much suppression of information,” he said. “There should be another voice that can pretty much argue the straight ‘get this all out in the open’ argument.

“The thing that concerns us most at the moment is the fact that the SIOs can be very broadly defined and their duration very long.

“I think there should be some restrictions, particularly on the duration for something to be declared an SIO, at least without it having to come back for renewal.”

Professor Disney also said the Press Council was concerned with the lack of whistleblower protections in the bill, and the broader lack of protection for government and corporate whistleblowers in Australian law.

Editor-in-chief of the West Australian Bob Cronin said West Australian Newspapers was “generally supportive” of the bulk of the legislation, but wary of the potential for it to erode fundamental freedoms.

“We appreciate that there is a threat of terrorist attack in Australia and we have no problem with the government tightening the laws to protect Australian citizens,” Mr Cronin said.

However, he held concerns for the speed in which the anti-terror laws were drafted, with “no leeway for innocent mistakes”.

“I don’t think any editors would deliberately jeopardise national security.

“Governments will make laws to deal with an ad hoc situation without looking at the broader principles … the freedom of speech and the press.

“My experience over many years is that governments of both persuasions will chip away at our freedoms, either without understanding the implications, or deliberately.

“You can lose your freedoms very subtly. As leaders, we need to be constantly on the lookout.”

While the laws were unlikely to change daily operations, he said, the threat of criminal penalties was a disproportionate response.

Professor George Williams AO, a constitutional lawyer at the UNSW Gilbert + Tobin Centre of Public Law, said the National Security Legislation Amendment Bill constituted a “blanket ban” on not only the disclosure of SIOs, but also any information related to those SIOs.

“There’s no defence for a journalist publishing information in the public interest even if they’re revealing wrongdoing on the part of the government, or a misuse of power,” he said. “It’s quite striking that journalists can be jailed for up to 10 years in those circumstances without any possibility of mounting a viable defence.”

Professor Williams said that he was also concerned by the lack of protections for journalists, who if charged and put to trial for breaching the Act, would have “no real defence” to mount.

“The best they might hope for is there’s an implied freedom of political communication in the Constitution, but that’s proved very weak and it’s not clear it would assist in any of these cases,” he said. “And that’s the problem with an offence that, on its terms, is so general.”

Sky News CEO Angelos Frangopoulos said: “We are deeply concerned about these changes and the impact on the fundamentals of robust journalism.

“We strongly support the industry’s position on both pieces of legislation and are monitoring the progress of the second bill.”

Malcolm Colless, a former News Limited director and chief executive of the Herald and Weekly Times, said the laws would not only be a deterrent to media organisations, but to whistleblowers who provide information.

“While the current proposed legislation will allow ASIO officers and their affiliates to engage in otherwise unlawful conduct under a new Special Intelligence Operations scheme, it will make it an offence punishable by up to five years jail for the unlawful disclosure of information relating to an SIO,” he said.

“The penal provisions here are quite specific but the scope of the legislation is broad and open ended and, for example, could apply to a journalist who reports on an SIO even if no ASIO employee is involved.

“This could have the combined effect of simultaneously silencing a whistleblower, journalist and publisher on an issue even though it has not been clearly established as a ‘special intelligence function’.

“The key issue here will be how these powers are used. For example one consequence of terrorists’ use of social media to parade their atrocities could be a progressive, enforced, government shutdown of these outlets.”

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