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Criminalising Journalism: Australia’s National Security Craze

There has been a lot of noise made in Australia about the need for broader protections when it comes to the fourth estate and the way it covers national security matters. In a country lacking a backbone in terms of constitutional free speech, journalists are left at the mercy of authorities when it comes to exposing egregious abuses of power. Consider, for instance, the exposure of war crimes committed by Australian forces via what has come to be known as the Afghan Files.

As Dan Oakes and Sam Clark, the two ABC journalists involved in putting together the file material wrote in July 2017, “Hundreds of pages of secret defence force documents leaked to the ABC give an unprecedented insight into the clandestine operations in Australia’s elite special forces in Afghanistan, including incidents of troops killing unarmed men and children.”

The material, published in seven parts, should not surprise students of war. In the brutality of the Afghan conflict, the killing of civilians became a casual, cruel matter. In September 2013, a man and his six-year-old child were killed during the raid on a house. This incident, along with another involving the killing of a detainee who had allegedly attempted to seize the weapon of an Australian soldier whilst in his custody, formed part of an investigation by the Inspector General of the Australian Defence Force.

In 2013, an Afghan man was slain by Australian troops while riding his motorcycle. The female passenger was injured. The report in question noted the increasingly parlous state of Afghan-Australian relations in light of such incidents, involving the wanton killing of civilians by special forces. Much of this stemmed from the sloppiness of Australian military protocol on the battlefield, shown to be hopelessly, and lethally inadequate. There nomenklatura of the defence establishment spoke to the need of only targeting Afghans “directly participating in hostilities,” a distinction that was lazily made if and when it was made at all.

These are but a few highlights that this cache of files revealed. But at the core of these revelations was a failed pseudo-colonial mission that was ignoble, misguided and, for all the fanfare of salvation, a dismal failure. It did little in terms of shoring up either Australian security or those of the Afghan population. It failed in defeating the insurgent Taliban forces. It had taken place on impulse, to assist a grieving US still licking its wounds after the terror attacks of September 11, 2001. As with other empires, Afghanistan was reaffirmed as a graveyard for failed powers. The Taliban, far from being defeated, showed their resoluteness and staying power.

The exposure of such defence documents should have sent policy makers and reformers into the corridors of the ADF. Oakes and Clark deserved, at the very least, a modest acknowledgment of merit.  Instead, they and the ABC attracted the keen eye of the Australian Federal Police. On June 5, 2019, AFP officers swanned in and cheerfully raided the offices of the national broadcaster in Sydney. The home of News Corp journalist Annika Smethurst was also raided for reporting on a separate matter touching on a proposed expansion of surveillance powers held by the Australian Signals Directorate. Both raids were motivated by alleged breaches of official secrecy under the old version of the Crimes Act 1914 (Cth).

These furnished the Australian public a chilling spectacle, and did something nothing else could have done: bring unity to a fractious field. Journalists from Fairfax, News Corp and The Guardian Australia chorused in concern and consternation. The Right to Know campaign was born, though remains, to date, an incipient venture. In the words of the coalition, “You have a right to know what the government you elect are doing in your name. But in Australia today, the media is prevented from informing you, people who speak out are penalised and journalism that shines a light on matters you deserve to know about is criminalised.”

The reason why the campaign has failed to yield rewards can be gathered by the continued investigation of Oakes and Clark and the mixed results of the campaign in the courts. The ABC failed to invalidate the warrants executed to search their Sydney offices, with Federal Court Justice Wendy Abraham issuing a pointed reminder in February that the implied constitutional right to political subjects is not a personal right but one designed to restrict power.

Smethurst and News Corp did modestly better in the High Court on April 15, but only in terms of result. In invalidating the search AFP search warrant, the judges found against the police purely on the basis of vague drafting. The warrant in question failed “to identify any offence under section 79(3) [of the Crimes Act]” and substantially misstated “the nature of an offence arising under it.” Had the warrant been prescribed with greater clarity, they would still have stood as valid exercises of state power. Smethurst and her colleagues probably kept the champagne on ice.

In September 2019, Attorney-General Christian Porter issued a direction under the Commonwealth Director of Public Prosecutions Act requiring the Director of Public Prosecutions to seek the approval of the AG in instances where a journalist is to be prosecuted. When it was issued, weak pronouncements were made that this was a warning to the AFP not to pursue the scribblers of the fourth estate. Porter brandished his credentials as a democrat, arguing that a free press was significant “as a principle of democracy.” Given Porter’s insistence on prosecuting former ASIS officer Witness K and his lawyer, Bernard Collaery, for exposing a blatant wrong against a friendly country, such credentials can be dismissed as surplus baubles.

Little wonder, then, that the AFP has now confirmed submitting a brief of evidence to the Commonwealth Director of Public Prosecutions, acting on the July 11, 2017 referral received from the Chief of the Defence Force and then acting-secretary of defence. Charges are recommended. Oddly enough, the police have decided to single out Oakes and spare Clark. Power, in the absence of restraint, is coldly arbitrary.

The final say on whether such charges will be laid resides with Porter, and we have every reason to be troubled by a discretion that is executive, political and non-judicial. Oakes sees the higher principle at stake. “Whether or not we are ever charged or convicted over our stories, the most important thing is that those who broke our laws and the laws of armed conflict are held to account.”

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13 comments

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  1. LambsFry Simplex.

    Only ever been about getting whistleblowers and coming down on even the palest shades of dissent.

    What a chance we blew!

  2. Andreas

    And for what, pray tell, have these warriors been invading a country with no good reason for 17 years now – killing innumerable inhabitants and returning home maimed or insane? Bananaland on steroids? This is mad!

  3. Brad Golding

    If you still believe 9/11 was a jihadist terrorist attack, I have a big steel bridge in Sydney for sale, unless, of course, you recognise mossad as a terrorist organisation, which it is, recognised as such or not. As for the WTC, if you think planes brought down the towers and then Building 7 just fell in sympathy, please, somebody, anybody, please explain to me what blew the guts out of Building 6, an 8 storey building with a 10 storey crater inside it?

  4. Jon Chesterson

    How Hypocritical is it of the Australian Federal Government to criticise China’s National Security laws when you consider the radical and draconian National Security laws and secrecy protecting government abuse in our own country, and then take a look at who is the chief executive of the majority of our law enforcement and intelligence agencies including the Australian Federal Police and Australian Signals Directorate – The one and only ignorant tyrant Peter Dutton.

    Are Australians that blind not to see the slide of power from an allegedly ‘impartial’ Judiciary to the ‘arbitrary and partisan’ Executive and suffocation of human and civil rights in our own country that affects us all (we commoners of the third estate, not just the media of the fourth estate? Meanwhile the first and second estates (the church and aristocracy or plutocracy, our elected government officials (the Liberals) seem to ride above the laws of our land, as usual, to the point the State protects their interests and itself against the people – You and I, the 90% majority.

    I am not defending China’s behaviour and sovereignty, rather asking what is the bloody difference, what is the point if we lose our own sense of democracy and justice, which after all is part of our own identity and sovereignty? Are we as a nation and people that stupid not to see the hypocrisy, incongruence and injustice of our own constitutional, legislative and judicial system and where we are heading? And please don’t tell me it is a matter of degree. Protecting the State and military for war crimes in Afghanistan against innocent men, women and children is no less serious to what is happening in Hong Kong, dare I even say it – Worse!

    And in all this Morrison rattles off, the self righteous prat he is, how we should defend ourselves from China while prodding a stick and his impotent irritating loud mouth at an already restless dragon. Is China just going to wait for us to arm ourselves at huge cost and delays with Trump’s bag of magical military hardware, while Morrison keeps poking around elevating us into full view as an ever unready target? The man is a dangerous reckless fool and a hypocrite. If anyone is a national security risk, it is Morrison and loud mouth Liberals, we suffer who put us all at risk.

  5. Jack Cade

    The United States cannot exist without war, but usually only picks on countries it thinks are unlikely to fight back. And then it gets its ample arse kicked, more often than not. It crushed mighty Grenada, though.
    The furore about ‘Russia’ paying the Taliban to have US soldiers killed is risible. Not that it is not feasible, but for years the US funded the Talibans resistance against Russia, but it was called the Northern Alliance in those days. And the nation that has interfered in at least 80 other countries electoral process shits itself at the idea that someone would do it to them.

  6. wam

    It is ssd that every word can be seen in yje behaviour of this gov.

    Nothing china is accused of is missing from the supporters of this government. Indeed the climate in the ADF and AFP favours treatment of ‘dissidents’ worse than in hongkong.

  7. ajogrady

    Australians keep voting for the party that does not represent them. A party that is an insult to Democracy and an embarrassment to good governance. A party that is built on nepotism and corruption. A party that is big on rhetoric but small on achievement. A party that has overseen the collapse of Australian living standards. A party that has been the architects of the most failed policies in Australian history. A party that has decimated the economy and the emvironment. Which party? The L/NP
    “1984” was written as a warning … not as an instruction manual for the L/NP.

  8. Andrew Smith

    As a way of comparison, how many journalists and/or media organisations have been subjected to the same treatment without protection of freedom of speech etc. in comparable ‘Anglo’ democracies?

    Meanwhile Australian journalists seem to forget that several years ago we had a LNP Attorney General demanding, in a different context, the right of freedom of speech?

    Not only do we have politicians owned and cowed by powerful interests, journalists and media are too?

  9. Gaz

    That lickspittle Peter Greste was on the radio again yesterday pretending to be a defender of press freedom. Remember his full frontal attack on Assange (when he was at his most vulnerable) in the SMH?

    The man is despicable.

    Why was he working for Aljazeera…my guess is that he is on the Aust. Govt. (five eyes) payroll and the Egyptian Govt cottoned on to the fact. Big strings were pulled and he was released but the rest of the crew are still in the slammer.

    He got his govt payoff and now is a Professor of Journalism somewhere in Queensland. The ABC wheels him out now and then and are trying to “rehabilitate” him.

    Well some of us have a few memory cells left!

    This government complain about the Laws in Hong Kong but the witness K case and the silencing of Bernard Colliery show that we have gone down exactly the same path. Secret trials. A compliant judge. No justice here anymore. Not even a kangaroo court…at least they were public.

  10. Jack sprat

    Have you noticed ,that Christian Porter’s top lip disappears when he try’s to hide the truth from the public.

  11. Phil

    Porter is the most dangerous man in the parliament. He is like Dutton in the ideology department, only unlike Dutton, Porter is as cunning as a shit house rat. Porter I’m sure, ejaculates into his suit trousers when he pulls on the Gag during Question Time. He has a smirk on his face, like he’s just had a sexual encounter with the lectern he leans on. He’s a worry.

  12. Jamie

    Phil, Jack, Gaz & Brad

    Yes, yes, yes, & yes

    ‘It’s almost impossible to say just what I mean’. . .

    But, from another observer, I think they sum it up quite nicely:

    My god , what a team .
    A fascist in charge of borders and humanitarian matters .
    An enviromental vandal in charge of the environment.
    A complete incompetent nutcase in charge of welfare.
    A treasurer who can’t add up .
    A finance minister who desperately wants out .
    AFP too busy chasing reporters to catch rorters .
    And all led by a man who can barely tell his arsehole from his elbow.
    No wonder we are in such trouble .

    Indeed.

  13. Harry Lime

    Porter is Tom Hagen to the Liar’s Godfather.

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