Welcome to the machine
Even before the Espionage Bill was introduced to parliament, Australia was well down the path of legislating prison terms for journalists reporting in the public interest.
Just half an hour’s drive north-east from Washington DC, the well-paved dual highway passes a forest before a final line of trees gives way to more open ground.
As the road swings round, on the left, looking like a sprawling shopping complex that has outgrown its site, the National Security Agency (NSA) appears. This is the headquarters of the most powerful intelligence-gathering organisation the world has ever seen.
It is the centre of a network that straddles the Earth. From the spy base at Pine Gap with its array of antennas pointing skywards against the sunset red of the Australian outback, to Menwith Hill on the green undulating farmland of Yorkshire in the north of England, the NSA is connected to satellites circling overhead, and undersea surveillance systems tapping into transcontinental telephone cables.
Nearly every phone call, email or electronically created signal will at some time end up here, or in one of the data storage bases of the NSA’s sister agencies in Australia, New Zealand, Canada or the UK. Known as the Five Eyes partnership, the intelligence-sharing agreement has its roots in the days of the British Empire.
If you use a telephone or the internet, nowhere on the planet is safe from the prying eyes and ears of the NSA and its sister agencies.
Every mobile phone tower, every email, every payment at the supermarket, every digital transaction adds to the profile the NSA is capable of building on every person on Earth.
Huge databases scattered across the world log the digital footsteps and fingerprints of us all.
Throughout the Western liberal democracies, new laws have given governments greater powers to eavesdrop on the population and the journalists whose job it is to keep them informed. Those laws that gave governments such sweeping surveillance powers were introduced ostensibly to track terrorists and reduce the number of attacks. But detailed analysis suggests the so-called anti-terror surveillance laws have not achieved what governments promised.
Instead they have often been more effectively used to track down whistleblowers and criminalise the work of journalists. The notion that the central role of journalism is to disclose secrets which powerful interests want kept from the public is being upended, particularly in the important area of national security.
New laws being shaped, both in the US and elsewhere, make illegal that which has been normal journalistic practice, and make legal the activities of intelligence agencies which have previously been outlawed.
Against sometimes hysterical claims from US politicians, other nations have fallen in line.
In Australia, sweeping laws demand that the metadata of all phone calls should be held for two years by the telecommunications companies, on behalf of intelligence and police agencies, exposing journalists and their sources to being tracked by the very organisations it is their responsibility to hold to account. The new laws give virtually no protection to journalists — and in particular, their sources.
One draconian piece of legislation has made it an offence punishable by up to 10 years’ prison for a journalist to reveal what the national Australian Security Intelligence Organisation (ASIO) determines is a Special Intelligence Operation (SIO). Since ASIO will neither confirm nor deny what is an SIO, it’s impossible to know if a journalist is about to break the law until the report is broadcast or published.
All this is happening as newspapers across the political spectrum have become weakened by plummeting circulation and advertising figures, and their owners are either unwilling or unable to stand up to governments.
Journalists who see their role as telling truth to power are under extreme pressure to protect themselves as they attempt to carry out their historically designated role of holding executive authority to account.
Without the US guarantee of freedom of speech and publication, or the European Court of Human Rights rulings supporting the right to protect the identity of sources, Australia is marooned mid-way in a legal version of a choppy Atlantic Ocean. The country might have produced some of the most outspoken proponents of libertarian free speech in Rupert Murdoch and Julian Assange, but Australian laws restricting expression are some of the most draconian in the world.
In September 2012, Australia’s then federal attorney-general, Labor’s Nicola Roxon, proposed introducing a data retention law. In 2015, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 passed through the federal parliament.
Telecommunications companies would be forced to store metadata on all Australians for two years. Although Australia’s parliamentary system is based on that of the UK, for Australian journalists there are none of the protections that are afforded by the European Court of Human Rights.
In an attempt to assuage journalists’ fears that their confidential sources would be made vulnerable to exposure, the government offered what it suggested was a compromise: to get access to journalists’ data, security and police agencies would need a Journalist Information Warrant, signed off by a judge.
But it would be no normal court: any hearing would be held in secret and the journalist would be kept unaware of the request to look through their metadata. They would be represented, without their knowledge, in the secret court by an advocate appointed by the government.
In the event that the journalist became aware they were under investigation, there was another twist to the law. Public disclosure of the existence of a warrant would be punishable by two years’ imprisonment.
In the event that the application for a Journalist Information Warrant came from ASIO, there would be no judge or public advocate potentially standing in the way, representing the journalist. The signature of the attorney-general would be sufficient to give the domestic spy agency access to any journalist’s metadata.
Six months earlier — in response to the [Edward] Snowden disclosures — Australia’s federal parliament had passed a law that gave ASIO even more power.
The National Security Legislation Amendment Act (2014) introduced a three-year prison sentence for intelligence officers who removed or copied classified material without authorisation. If the information was given to a third party — for example, a journalist — the officer could face 10 years in prison.
And to prevent any outside scrutiny of the intelligence organisation, the government rushed through a law which made it extremely difficult for ASIO’s actions to be investigated by journalists.
Section 35P of the Act created an offence that makes it a crime, punishable by up to five years in prison, to disclose information about a special intelligence operation — an SIO. If the disclosure endangers anyone’s health or safety–or the effective conduct of an operation — then the maximum sentence increases from five to 10 years.
That law places journalists in an impossible legal position. If they report, even inadvertently, on an SIO, they could be charged. If they try to check with ASIO, they would also potentially run into trouble: even discussing an SIO is itself illegal. There is no defence that the public has a right to know about botched ASIO operations. ASIO is only answerable to the Inspector-General of Intelligence and Security, a government-appointed official.
After a strong campaign by both the print and electronic media, the MEAA and the Walkley Foundation, the government eventually amended the law, introducing a defence of “prior publication”. That means that if another publication has already reported the event, the journalist might be in the clear. In other words, the best legal defence is to get beaten to the story!
In early 2017, the Australian government began examining the possibility of including the cover of SIOs to the Australian Federal Police. Already a journalist could be imprisoned for between six months and seven years for “receiving” any “sketch, plan, photograph, model, cipher, note, document article or information” covered by the Official Secrets section of the Crimes Act (1914).
Coupled with the Data Retention Act and the ASIO Amendment Act, it would make reporting on significant matters of national security that much more difficult for journalists, and make whistleblowers that much more wary of speaking out.
Australia, the nation that has passed more counter-terrorism legislation than any other place on earth, now has specific laws targeting journalists, a knee-jerk reaction to the Snowden disclosures which did so much to make the world aware of the dangers of mass surveillance.
Andrew Fowler is an award-winning investigative journalist and a former reporter with the ABC’s Foreign Correspondent and Four Corners. His book Shooting the Messenger: Criminalising Journalism (RRP $34.99, Routledge) was launched in April.
This piece was previously published in Criminalising Journalism — the MEAA report into the state of press freedom in Australia 2018.
