The Political Challenges of Reform
Alliance for Journalists’ Freedom Summit for Press Freedom
SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS
The Political Challenges of Reform
Alliance for Journalists’ Freedom
Summit for Press Freedom
29 August 2019
I acknowledge the traditional custodians of this land, the Gadigal people of the Eora Nation, and pay my respect to their elders past, present and emerging.
Thank you to the Alliance for Journalists’ Freedom for inviting me to speak at this Summit for Press Freedom.
Peter first invited me to speak at this event in March of this year, which now seems like a long time ago.
Back then, I had hoped that I would be able to attend this event to address you as Attorney-General. I had hoped that I could use this speech as an opportunity to re-affirm Labor’s rock-solid commitment to upholding the freedom of the press and the public’s right to know as fundamental principles underpinning Australia’s democracy.
Even back in March, I could see that, after six years of a Coalition Government, there were worrying signs that these fundamental principles were being eroded.
This is, after all, a Government that made the abolition of the Office of the Information Commissioner a priority in its very first year in office and, since then, I would argue, has done everything in its power to hide what it is doing from the Australian public.
But, in March, I did not know that the Australian Federal Police were investigating multiple journalists and Australia’s two largest media organisations for alleged breaches of long-standing secrecy offences, including alleged breaches of section 79 of the Crimes Act.
And I certainly did not imagine that, barely two weeks after the federal election, the national broadcaster and the home of a News Limited journalist would be raided by the Australian Federal Police on consecutive days.
Raids that prompted the New York Times to suggest that “Australia may well be the world’s most secretive democracy” and to declare that:
“even among its peers, Australia stands out. No other developed democracy holds as tight to its secrets, experts say, and the raids are just the latest example of how far the country’s conservative government will go to scare officials and reporters into submission.”
Against that background, I have been asked to speak to you today about “political challenges for reform”.
Ordinarily, it would be difficult to speak on that topic without first describing precisely what “reform” is needed.
Many of you have very clear ideas about what reform is needed. The Alliance for Journalists’ Freedom has proposed a “Media Freedom Act”, for example – others have suggested different approaches. All of your proposals warrant careful consideration.
As you all know, my colleagues and I on the Parliamentary Joint Committee on Intelligence and Security are currently engaged in a process of doing precisely that.
Out of deference to that process, and a separate parliamentary inquiry process that is also on foot being chaired by Senator Hanson-Young, I am not proposing to announce any policies here today. But it would be churlish of me not to acknowledge what is patently obvious to everyone in this room: there is urgent need for reform in this area. The proposition that the Government has put to the Intelligence and Security Committee – that everything is fine and no changes are needed – is clearly untenable.
Sadly, the Morrison Government seems to have adopted the same ‘She’ll be right, Mate – nothing to see here’ approach to meeting other significant threats that require national leadership, such as combatting climate change, responding to falling education standards and managing the growing threats to our economic wellbeing. But in the ten minutes I have I promise to stay focused on the subject matter of this Summit – press freedom.
So my starting point today is that there is a need for reform. But the focus of my remarks will be on the political challenges to achieving reform – any reform – in this area.
Regrettably, the key political challenge is the Liberal Party of Australia. Because while there are still a few members of that Party who claim to be proponents of classical liberalism, including some Liberal members of the Intelligence and Security Committee, the truth is that, as I stand here today, the Liberal Party is “liberal” in name only.
The Prime Minister is no classical liberal. And the Minister responsible for Australia’s national security and intelligence and law enforcement services would probably try to sue me for defamation if I referred to him here as a “classical liberal”.
Obviously to address a problem, you first need to recognise there is a problem. Similarly, to achieve reform – any reform – you first need to recognise there is a need for reform, and to engage in a constructive debate on what those reforms should be.
But this Government does not recognise that there is such a need. That’s not me saying it – that’s what the Government says.
The current Prime Minister, Scott Morrison, is the man who gave us the immortal phrases “on-water matters” and, more recently, “the Canberra bubble” – phrases he cynically deployed in order to avoid answering questions he didn’t like from journalists. He is also the man who, in the immediate aftermath of the raids on the ABC’s headquarters and Annika Smethurst’s home, dismissed community and journalists’ concerns with a wave of the hand and the glib declaration that “[i]t never troubles me that our laws are being upheld." According to the Prime Minister of Australia, federal police raids on a respected journalist and the national broadcaster were just business as usual.
I suppose we should at least be grateful that the Prime Minister resisted the urge to declare to the world ‘How good are police raids on journalists?’
More than a month later, Peter Dutton was still trying to present those raids as unremarkable, telling the Today Show that “[n]obody is above the law” and “if you've got top secret documents and they've been leaked, it is an offence under the law and police have an obligation to investigate a matter referred to them ... and they'll do that." Business as usual.
The key “law” that Mr Morrison thought was being upheld by those raids is section 79 of the Crimes Act. From public statements by the AFP and others, it appears that the journalists Dan Oakes, Sam Clark and Annika Smethurst are all being investigated for alleged breaches of that provision.
Until it was repealed in June last year, section 79 prohibited the unauthorised disclosure, and the unauthorised receipt, of secret Commonwealth information. It included no exemptions or defences for journalists. Section 79 was based on provisions of the UK’s Official Secrets Act 1911 and a version of that provision formed part of the very first Commonwealth Crimes Act in 1914.
And yet for over 100 years, between 1914 and its repeal last year, I am not aware of a single journalist ever being prosecuted for committing an offence under section 79.
So, if the potential prosecutions of the three journalists for alleged breaches of section 79 of the Crimes Act are just “our laws … being upheld”, why haven’t hundreds of Australian journalists been prosecuted for breaching that provision? It was on the statute books for over 100 years – and it is not as if journalists only recently became interested in writing stories based on leaked information!
I can tell you now that the reason journalists have not been prosecuted under section 79 is because, for over 100 years, successive Australian governments of all political persuasions did not think it was appropriate to throw journalists in prison for writing headlines that embarrassed a government. For over 100 years, Australian governments did not think that it was appropriate to use the criminal law – and, specifically, section 79 of the Crimes Act – to target journalists for doing their jobs.
Not because those governments were uninterested in “our laws … being upheld”. But because those governments understood the importance of respecting and upholding the fundamental principle of press freedom. They understood that, while an embarrassing headline or two may threaten the electoral prospects of a particular government, an assault on the press would threaten the very character of Australia as a free and democratic nation.
Through their conduct and public statements before, during and after the raids on journalists in June of this year, the Prime Minister of Australia and senior members of his Government have demonstrated that they do not understand this.
So, the first immediate political challenge to reform is to ensure that Scott Morrison and his Government understand that the Fourth Estate is a foundation of all healthy democracies, including ours.
If Mr Morrison understands there is a need for reform to better protect press freedom and the public’s right to know, we can focus on having a productive debate about what those reforms should look like – including in respect of improvements to the laws that protect whistleblowers and to Australia’s freedom of information framework.
However, if Mr Morrison and his Government continue to obstinately refuse to recognise that there is even a problem here, the only way to achieve reform in this area during this term of Parliament will be to ensure that Mr Morrison, ever the cunning politician, understands that he will pay a heavy political cost for inaction.
Because if there is one thing that motivates this Prime Minister to take action, it’s his own self-interest.