Address to the 2015 Melbourne Press Freedom Dinner by Nine Network political editor Laurie Oakes

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As concern over terrorism grew last year, Tony Abbott told us: “The delicate balance between freedom and security may have to shift”. Well, the balance between press freedom and security certainly shifted. Tonight I want to make a number of points about that.

I want to argue that we in the Australian media have been somewhat apathetic on the press freedom front, not vigilant enough or as willing to fight as we should have been. I also want to say something about our new Prime Minister and his attitude. And finally, I want to talk about the need to bring the public along with us in the press freedom cause.

It was Indonesian troops who murdered the Balibo Five 40 years ago, but the response of the Australian Government was shameful. It lied and covered up, feigning ignorance about what had happened to them.

I remember the late Bill Pinwill, who was press secretary to the Defence Minister Bill Morrison at the time of the deaths, telling me about an intelligence document he’d seen very soon afterwards. It quoted an intercepted Indonesian communication referring to the bodies.

Bill was almost certainly committing a crime in talking to me, but he was shocked—both by the deaths and, I assume, by a decision to throw a cloak of secrecy over the whole matter. The Australian Government pretended it knew nothing about the fate of the journalists. It denied for years receiving the kind of intelligence Bill had seen in the Minister’s office.

Gough Whitlam, and Malcolm Fraser after him, would both have considered themselves strong believers in press freedom. But Governments have competing priorities and—especially when national security is involved—the press freedom issue is rarely at the top of their list.

That was the case in 1975. It’s the case now. The current struggle, if that’s the right word, involves Australian law and domestic politics, so the lives of journalists are not at risk. But it’s important, nevertheless.

For the last couple of years—until 10 days ago—we had an ex-journalist as Prime Minister and an ex-journalist as Communications Minister. Yet that period saw a number of pieces of legislation, primarily security-related, that clearly have the potential to inhibit public interest reporting.
Some of the legislation was a direct threat to journalists themselves. Other measures threatened sources, or made it more difficult to protect the identity of confidential sources. Attack sources and you attack journalism.

In the case of Peter Greste and his Al Jazeera colleagues, the Australian Government did speak up, very loudly, about press freedom. As well as taking a strong public position it intervened directly with the Egyptian authorities, seeking to have the charges dropped, and then trying to secure pardons. Pressure from the Australian Government was certainly vital in getting Peter home. it helped in freeing his colleagues on Wednesday.

But the Government’s domestic actions, I suggest, were less helpful. If we hope to influence other countries on this issue, we need to set an example

The slogan we’ve used in our support for Peter and his two colleagues is: “Journalism is not a crime”. It’s a good slogan. But it’s surely less effective than it would be if the Australian Government was not, at the same time, introducing “a serious criminal offence, punishable by gaol, for journalists doing their job”.

That description of one of the new security measures—“a serious criminal offence, punishable by gaol, for journalists doing their job”- comes from a submission to the Independent National Security Monitor from a coalition of media organisations including News Corp, Fairfax Media, AAP, the ABC, commercial free-to-air TV networks, Sky News, and half a dozen other major companies plus MEAA.

The Independent National Security Legislation Monitor is looking at any impact on journalists in the operation of section 35P of the ASIO Act — the new section concerning disclosure of information relating to Special Intelligence Operations, or SIOs. Essentially, undercover operations involving security agents. The 35P offence carries a five-year gaol term, double that for “reckless” unauthorized disclosure.

This was the first in the series of measures that is my focus tonight. Basically, there were three tranches of major amendments to security legislation. Each of them impacted on journalism and press freedom in some way.

One of several concerns with the second tranche, known as the Foreign Fighters Bill and rushed through Parliament with unseemly haste, was that the wording, particularly dealing with a new offence of “advocating terrorism”, might catch up legitimate areas of speech and advocacy. MEAA expressed the fear that it could also encompass news stories that reported on banned advocacy.

The third tranche everyone certainly knows about. That was the biggie – the Data Retention Bill requiring telecommunication companies to keep metadata for at least two years so that it can be accessed by a variety of agencies, including security organisations and the police. The Government keeps claiming the other measures are not directed at journalists. With this one, though, we had a parliamentary committee confirming that one of its purposes was the pursuit of journalists’ confidential sources.

We tend to sit back and blame the Government for infringements on press freedom. A point I want to make tonight, though, is that we should also blame ourselves. I think we’d got complacent. When the former Labor Government tried to impose new regulations on the media, the threat was obvious and we jumped up and down. This more recent stuff has been less obvious and cloaked by the need to counter terrorism. So the initial reaction to section 35P was muted. Some in the media even welcomed it.

It’s obvious that no responsible journalist would want to blow an under-cover ASIO operation. We’d all agree that ASIO officers who penetrate a terrorist cell, say, should have legal protection. But this law covers all aspects of a Special Intelligence Operation for all time. That’s extraordinary. And there clearly could be occasions when reporting matters connected to an SIO would be in the public interest as long as ASIO agents and legitimate security operations were not endangered.

What if there’s a major bungle that could be exposed without endangering an operation? When it’s over, perhaps? Our security agencies have been involved in some spectacular stuff-ups in the past. The Dr Haneef affair comes to mind. And the notorious ASIS exercise involving armed trainees running amok in a Melbourne hotel. Or what if there’s corruption? Or gross incompetence? Or an attempt to pervert the course of justice? Under this law, no-one can report it.

And anyway, as the submission from the media organisations points out, because SIO’s are, by definition, covert, a journalist might receive information without knowing it relates to such an operation. This uncertainty, the submission from the coalition of media organisations says, will expose journalists to an unacceptable level of risk and consequently have a chilling effect on the reportage of all intelligence and national security material.

There are ways these problems could have been handled while still achieving the objectives of the legislation. The Right to Know submission contains suggestions. An exemption, for example, if a disclosure is “made in good faith in a report or commentary published about a matter of public interest by a person engaged in a professional capacity as a journalist where the report or commentary does not disclose, directly or by inference, the identity of a security officer”.

If the Government was fair dinkum in its claims that 35P is not directed at journalists, it’s very hard to see why an exemption of that kind would not be acceptable. But we didn’t take up the issue at the start, and once the law is on the statute books winding it back becomes a very difficult proposition.

If we’d gone into battle earlier, seriously and united, we might have got somewhere. We were too slow to recognize the threat. Too late, and probably too polite, in pushing back.

It’s easy to understand why that happened. In the context of a heightened terrorism threat, people involved in the media are as anxious as anyone else about the need to safeguard the public. But, to quote Anthony Whealy QC, a former Supreme Court judge who presided a number of major terrorism trials and was then commissioned by the Government to review anti-terrorism laws: “The worst time to push through legislation of this kind, and to push it through urgently, is when there is a supposed air of panic around the place.”

In such a climate the risk increases that proposed measures don’t get proper consideration. Including by the media. Even when they affect the media. Even when they impact on press freedom.

I’m going to take The Australian to task here. Specifically over an editorial that appeared in that newspaper on September 29th last year. I’ve got a personal interest, as you’ll see.

The editorial contained the assertion that The Australian “supports freedom-of-speech campaigns and has long advocated the principle that the public has a right to know what their government is doing and why.” That’s true. The Oz has done that. It’s why this incident stands out.

In the editorial, the paper criticised journalists who were arguing the press freedom cause.

The editorial said: “The Guardian’s Katharine Murphy, the ABC’s Mark Colvin and News Corp Australia columnist Laurie Oakes, among others, believe the counter-terrorism laws passed by the Senate last week are excessive.” There was then a sneering reference to Katharine having been enthusiastically praised by “the usual suspects on Twitter”.

The editorial quoted me as arguing that ‘fighting terrorism is obviously important’ but ‘accountability journalism is important too’. It said: “He (Oakes) made a sweeping statement that ‘journalists could go to gaol simply for ‘holding those in authority to account’.” The kicker was that I could have been singing from the same songbook as the Greens. When The Australian compares you to the Greens you know you’re really in bad odour.

The threat of terror in Australia was genuine, the paper said. New laws were needed to deal with it, and journalists should understand this. True enough. But concerns about the impact on journalism were dismissed with a sentence. “We do not believe that our investigative reporters, including those who regularly write on defence and security matters, will have their work significantly affected by these new laws.”

Well, as it turned out, a number of those reporters disagreed. The Oz’s Foreign Editor Greg Sheridan was soon on Q&A calling it “a very bad law” and “a very significant misjudgement and over-reach” by the Government. Cameron Stewart, The Australian’s associate editor specializing in investigative journalism in the national security and defence fields, told Media Watch: “I think these new provisions will undermine the ability of journalists to keep the Government accountable on issues of national security”. And: “Australians will know less than they deserve about what is happening inside security agencies at a time when they are more powerful than ever before”.

In a piece published in The Australian a few weeks after the editorial, Stewart described a story he had written in 2012 that would have left him open to a gaol sentence under the new laws. It concerned a raid that had to be brought forward because of an embarrassing mistake involving an ASIO informer and a lost phone. Stewart wrote:“My piece did not harm the operation but it did tell the real story as opposed to the sanitised government version.”

As I’ve already mentioned, News Corp, which owns the Oz, is now one of the media organisations that have joined forces to try to have section 35P changed, with a submission describing it in almost exactly the same terms that attracted the ire of the paper when I’d used them. To quote that submission again: “The introduction of a serious criminal offence, punishable by gaol, for journalists doing their job, does not offer a balance between national security concerns and the importance of public interest reporting by the media and journalists.”

I wish The Australian had been saying that, I wish ALL of us had been saying that, when the proposal first reared its head. I was as guilty as anyone else. My column didn’t appear until section 35P was already approved by Parliament. The problem was we were alarmed but not alert. Alarmed by the terrorism threat, but not alert to the potential impact of counter-measures on press freedom.

The concluding sentence of The Australian’s editorial said: “It is incumbent upon government to find the right balance”. But these things can’t just be left to governments. If we’re to achieve a proper balance, it’s also incumbent on journalists and publishers and broadcasters to fight for the press freedom side of the argument.

It’s not going to be given due weight by governments of any stripe otherwise. I repeat, press freedom, transparency etc. are rarely high on their list of priorities.

You can see that from what’s happened with the Freedom of Information system. There’s been a steady retreat by politicians and bureaucrats from the freer flow of information that briefly gave cause for optimism following John Faulkner’s reforms in 2009 and 2010. The retreat started under the Labor government. And it had nothing to do with security–merely old habits reasserting themselves.

John Faulkner as Special Minister of State was a true believer in government transparency, and introduced reforms to the FOI system that unequivocally conveyed a presumption in favour of disclosure. When Faulkner went, so did enthusiasm for his approach.

A key reform was the appointment of an Australian Information Commissioner to review access refusals, publish FOI guidelines for agencies to follow, and act as a kind of champion of open government. We get an idea of what happened to that from a 2013 paper by Professor John McMillan, the first Information Commissioner and, in any meaningful respect, the last one as well.

When an event was organized to mark the 30th anniversary of FOI in Australia, no minister attended or made any contribution. Legislation to entirely exempt the Parliamentary Departments from the FOI Act was rushed through Parliament, even though this was contrary to a submission from those departments. The Government stopped responding to key reports from the Information Commissioner. It ignored a suggestion that ministerial appointment diaries be published on the web. Australia did not join the International Open Government Partnership formed in September 2011 and which now has 64 member countries. And so on.

And when the coalition came to office? It announced the abolition of the Office of the Information Commissioner in its first Budget. The senate blocked that, so the government effectively defunded the office. McMillan, largely stripped of staff, spent his last eight months in the job working from home. A disgrace.

And the media were pretty much silent throughout.

That’s partly because these things happen gradually. It’s the slippery slope process. The slippery slope was involved with section 35P of the ASIO Act too.

When we belatedly started to make a fuss about it, the Government’s response was to say: “What are you on about? This is not new. Much the same provision is in the Crimes Act to protect AFP officers who go under cover.”

And it was. Inserted in 2010 by the Labor Government. Making it a criminal offence to disclose information relating to what’s termed a “controlled operation”. And, like section 35P, it included gaol sentences.

There was no media exemption there for public interest reporting either. The same concerns apply as with the ASIO Act amendment. The Right to Know coalition is now arguing for changes to this legislation, too. But it doesn’t seem to have rung any press freedom alarm bells when it went through Parliament. Not that I recall, anyway. The media either missed it or didn’t think it was worth complaining about. That allowed the precedent to be set.

Which brings us to the matter of the dreaded metadata. Specifically the Telecommunications (Interception and Access) Amendment (Data Retention) Bill. That, too, was defended by the Government on the basis that there’s nothing new to see here.

Metadata had been available to law enforcement bodies and some other agencies for years. Tony Abbott said this hadn’t worried him when he was a journalist. The only change was that law enforcement agencies wanted mandatory retention of metadata for two years because telecommunications companies had less and less need to retain it for their own purposes, such as billing customers.

But there had been change, of course. Gradual but massive change. At the start it was just which landline phone called which other landline phone. But with the internet and digital technology—computers, mobile phones, emails, text messaging, GPS and the rest—the amount of metadata grew. Mobile phones became tracking devices. Metadata made it easy to work out not only who you called and received calls from but who you met and where and when. So easy that it was no longer necessary to drag journalists before a court and demand they reveal a source. The metadata told all.

It was the slippery slope again, though in this case caused by technology rather than changes to the law. But there wasn’t much resistance until the metadata retention proposal emerged in Parliamentary committee hearings under Labor before the change of government. Even then, there was no great sense of urgency on the part of the media.

It’s clear in retrospect that we should have been alarmed and trying to get some kind of protection for journalists and their sources much earlier. It’s been obvious for a very long time that the metadata threat to journalists’ confidential sources is the big press freedom issue of the internet age. We didn’t really need to wait for the metadata retention legislation as a catalyst. We only had to look at what was happening overseas, particularly in the US, to see what was coming in Australia.

When the media eventually took up the cudgels, we didn’t get much—but we got something. The politicians were pushed into introducing a requirement for warrants before a journalist’s metadata can be accessed for the purpose of identifying a source.

Many in the industry, including MEAA, think this is pretty meaningless because Journalist Information Warrants won’t be contestable by journalists or media organisations. Those targeted won’t even know about the warrant application. The whole process will be secret, with the threat of two years in the pokey for anyone revealing the existence of a warrant.

There will be Public Interest Advocates–lawyers, appointed by the Government – able to contest warrant applications, but they won’t be standing in the shoes of journalists or media organisations. In fact, the Attorney-General’s Department says candidly that there will be times when the advocates will support issuing a warrant.

In a letter to the Attorney-General’s Department, declining to co-operate in the development of the scheme, MEAA said: “The warrant system merely imposes a hurdle before government can use journalists’ metadata to identify journalists’ confidential sources”. That’s probably pretty accurate.

But I belong to the school that thinks something is better than nothing. That a hurdle is better than no hurdle. There is now a process, with the possibility of some restraint, where before it was open slather. Public interest at least gets a look in now. It might be only a small improvement, but it’s an improvement all the same.

Basically, though, we can’t turn back the technological tide. After introducing the metadata retention legislation into the House, Malcolm Turnbull advised journalists dealing with confidential sources that from now on they’d be wise to use encrypted messaging applications and take care not to leave an electronic trail. When a minister starts telling you how to get around his own law it’s a bit odd. He’s right, though. We have to change our behaviour. It’s either forward to encrypted messaging applications or back to typewriters and signalling sources by moving pot plants around on our balconies.

This is probably the appropriate point to talk about our new Prime Minister. As everyone knows, he was a journalist before he was a lawyer before he was a founder of an internet company before he was a merchant banker before he was a politician. He got his first job in journalism when, as a law student at Sydney university, he moonlighted as state political roundsman for the Nine Network.

There’s a story from that period that some would say shows he hasn’t changed much. After reporting state politics for a short while, the brash young Malcolm went to see Sam Chisholm, who ran the Nine network, and said: “”Sam, how about I do a show called Turnbull at Ten?”

“Great idea, son,” Sam replied. “Do you think Ten would be interested?”

With a Turnbull Government I hope we’ll see a change from the “Whose side are you on?” view of journalism. He did say at the opening of the war correspondents’ memorial on Wednesday that democracy depends vitally on a free and courageous press. He told a fellow MP in the House earlier this year: “The work journalists do is as important as anything the honourable member and I do—or any of our colleagues do.” I’m not sure how that went down with some in the chamber. But he seemed to be serious.

One reason I’m cautiously optimistic about what Turnbull’s elevation might mean in terms of the press freedom issue is that he understands the fundamental importance of clause 3 of the MEAA’s Journalists’ Code of Ethics: “Where confidences are accepted, respect them in all circumstances.” The new PM refers to the protection of confidential sources as “the journalist’s job”, an “obligation” and a “duty”. He accepted that it was an important consideration in the data retention debate at a time when other ministers were calling it a red herring.

Then there is the concern Mr Turnbull expressed about metadata collection and retention laws when they were proposed by the former Labor government before he was bound by a Cabinet decision to implement them himself. In his 2012 Alfred Deakin Lecture, the then shadow minister for communications said he had “very grave misgivings about the proposal”. He described it as a “sweeping and intrusive new power” which would have a “chilling effect on free speech”.

I also take some hope from Mr Turnbull’s leading role in the Spycatcher trial. Tony Abbott, although he’d also worked as a journalist for a while, came down heavily on the side of the security agencies in this sort of discussion. He was disinclined to question them. Mr Turnbull, on the other hand, has good reason to be suspicious of the spooks.

For anyone who doesn’t remember, as a young solicitor Mr Turnbull took on the Thatcher Government on behalf of a former British intelligence officer, Peter Wright, who’d moved to Tasmania and written a book about Soviet penetration of MI5. Wright’s former employers wanted it banned. The British Cabinet secretary, Sir Robert Armstrong, was sent out here by the intelligence establishment in London basically to lie to the Australian courts.

In his book, The Spycatcher Trial, Mr Turnbull writes that it was in the public interest for Wright’s book to be published because it revealed evidence of crimes and other unlawful acts committed by the British Security Service. That’s directly relevant to the argument over section 35P of the ASIO Act.
The sensational case brought Mr Turnbull international fame. He emerged from it convinced that the British spies had manipulated the British politicians. I think it’s unlikely he’s forgotten that lesson. I hope he hasn’t.

I’m not suggesting a Turnbull Government will be keen to revisit the security legislation brought down during the Abbott prime ministership, though that would be nice. What I am suggesting is that his instincts may augur well for when matters involving press freedom arise in future. As they will.

But, like any politician when to comes to this issue, he’ll have to be watched.

Now, there’s one more matter I want to talk about.

More than 30 years ago I read Tom Stoppard’s play, Night and Day. It’s about a number of things, including colonialism. But it’s also about journalism. And there are some great quotes. For example: “No matter how imperfect things are, if you’ve got a free press everything is correctable, and without it everything is concealable”. And: “A free press, free expression—it’s the last line of defence for all the other freedoms”. I’ve quoted those lines often.

But now Stoppard has modified that all-or-nothing view on press freedom. In a newspaper article after the phone hacking scandal and the Leveson inquiry in Britain he wrote: “A free press needs to be a respected press.” He said his changed attitude disappointed some of his old Fleet Street acquaintances. I suspect it might disappoint some people here tonight.

But I think he’s right. A free press does need to be a respected press.

That’s because, if we’re going to safeguard the utmost freedom to report, if we’re going to win political arguments like those I’ve been discussing, we need the public behind us. Most of us in this room, most people in the media, probably assume we’ve got that public support. But have we?

We’ve seen survey after survey, poll after poll, showing a deep –and deepening–lack of trust in the media. In light of that, what basis do we have for assuming there is widespread public sympathy when it comes to press freedom questions?

The only way to guarantee it is to start winning back respect. Rebuilding trust. That obviously involves lifting our game. But trying to project a more positive picture of what we do and why, the significance of journalism—that wouldn’t be a bad idea either.

Thank you.