FREEDOM OF SPEECH AND THE MEDIA

Australian Federal Police raids on the offices of the ABC and the home of a journalist with The Australian provoked a heated debate over press freedom in Australia during June 2019. Predictably, the debate gained widespread media coverage as the Australian media voiced its collective disapproval of the raids. To offer a more nuanced appraisal of media freedom and national security, Chris Kenny, an author, columnist with The Australian and Sky News presenter, and Chris Mitchell, Australian columnist and a former Editor-in-Chief of The Australian addressed The Sydney Institute on Thursday 11 July 2019.

FREEDOM OF SPEECH AND THE MEDIA

CHRIS MITCHELL

Good evening ladies and gentlemen. Thanks for coming out on such a blustery winter’s night. Thanks to Gerard and Anne for inviting Chris Kenny and me tonight to discuss The Media and Freedom of Speech.

I wrote a column for The Australian about this issue on June 17. I was aware as I wrote from reading blog comments on other stories on the issue that many readers do not have any sympathy for journalists. They sided with the Australian Federal Police after raids on New Corp reporter Annika Smethurst and the ABC in the first week of June.

My intro for that piece read, “While journalists obsess about media raids by the Australian Federal Police a fortnight ago, much of the public is sceptical, trusting the security services more than the fourth estate in an era of fake news and activist reporting.”

I tried to allow in the column for what former ASIO and Defence Department chief Dennis Richardson, a close contact during my days as editor in chief of The Australian, had said that same week about the terror-related laws enacted since the September 11 2001 World Trade Centre attack. These laws had protected Australians by helping to foil several domestic mass casualty plots in the 17 years since S11.

I tried to show freedom to report and freedom from terror are not mutually exclusive. Yet many of the 250-plus comments on the column were sceptical about the idea whistleblowers or journalists could be trusted to act in good faith on national security.

What 46 years in journalism, nearly 25 of them as an editor, have taught me is Australians do not share the views of American founding father Thomas Jefferson, who famously said he would rather have newspapers without a country than a country without newspapers.

 Like the wider question of free speech generally and the push for defamation law reform, Australians remain remarkably ambivalent to the free exchange of ideas.

In an era when people can make wild and unsubstantiated allegations on social media with little fear of legal comeback, there is little trust in professional journalists who must get over very high legal bars before publication in the mainstream media.

Maybe this is because Australian society, after a century of state paternalism post-Federation, really does believe the old adage: it is impolite to talk politics, religion or sex in company. These always struck me as the only topics really worth talking about. Yet many Australians, happy to talk sport endlessly, distrust the sort of rambunctious free speech my old editor Frank Devine so admired about New York society. Here we have, until the summary execution of Kevin Rudd in 2010 and the succession of prime ministers since, tended to be largely trusting of our politicians. And our police for that matter.

Having lived day to day with regular, sometimes forceful and often threatening, contact from leaders in both politics and law enforcement I would trust most journalists more than many politicians and lots of senior police I have met.

An example? My successor at The Australian and newish CEO of SkyNews, Paul Whittaker, was raided by the AFP at his Gold Coast apartment before dawn in late 1995 over a story that won him a Walkley Award for revealing the activities of former Labor Senator Graham Richardson in what would become known as the Operation Wallah affair.

The raid that tipped Whittaker and his wife out of bed was led by then Northern Division commander of the AFP Mick Keelty, by 2001 Commander of the national force. Later that day he and a team of investigators raided Queensland Newspapers and my office. They searched the 11 hectare QN site inside and out in a vain hunt for evidence of the source of leaks that identified Richo’s involvement with Gold Coast crime figure Nick Karlos, prostitutes provided by Karlos and meeting with a group of businessmen trying to sell stolen MX missile guidance systems to the Chinese Government. It is all in federal Hansard for those who have not heard of it. It was a tough day for Keelty as he sat in my office drinking coffee and talking to head office in Canberra while his officers searched.

Lucky he did not know how close he was to the material.

The AFP was trying to shut down Whittaker’s reporting on a plot that was a threat to national security rather than investigate the plot itself. It was motivated not by preventing wrongdoing but by politics. The police left embarrassed, braving TV and newspaper cameras on the way in to QN and again on the way out. Whittaker had phoned me as soon as the police left his flat and I had called the other media before breakfast. That night a very senior federal Minister who was monitoring the raid rang me at my desk about 10 pm. He made quite serious threats, all on behalf of the political interests of the Labor Party rather than the national interest. The raids taught me the public interest is not the same as the private interests of politicians.

I used a more recent example in my June 17 column, again involving the AFP, raids on journalists and a story that was clearly in the public interest but damaging politically.

Martin Chulov in The Australian in 2005 broke a series of stories about internal reports into the operations of the Australian Customs Service, now part of Australian Border Force within Home Affairs Minister Peter Dutton’s portfolio. The internal Customs reports were prepared by Allan Kessing, whose home was raided after our publications. The paper never named its source. Kessing was convicted despite maintaining his innocence.

Why suspect a political motive for the action against the paper and Kessing? The responsible Aviation Minister was then Deputy PM John Anderson who took up the recommendations of Kessing’s reports and spent $220 million to bolster Customs’ defences. Anderson’s swift action showed the paper was right to reveal reports that had been sat on by bureaucrats for three years. The raids were bureaucratic arse covering at a time when airport security was top of mind politically.

After last June’s raids, the AFP assured the public there was no political motive for the search of Annika Smethurst’s Canberra house on June 4 or the ABC the following day. The timing of two raids on separate investigations was apparently driven only by the progress police inquiries and nothing to do with the federal election a fortnight earlier.

Smethurst in April 2018 in The Sunday Telegraph published a story revealing Dutton’s department had considered a plan to allow the Australian Signals Directorate, which tracks overseas electronic transmissions, to target the communications of Australian citizens. The ABC raids concerned material leaked for a story, The Afghan Files, first published on 7.30 on July 10 2017.

The stories were not connected, did not present any threat to national security and were clearly in the public interest.

 Raid timing purely coincidental? Perhaps but perhaps there was a political interest in intimidating of whistle blowers, leakers and reporters.

How odd too that this coincidence of timing on stories published years apart extended to an AFP phone call on Monday June 3 to 2GB host Ben Fordham warning he was being investigated about a story he ran concerning a people smuggling attempts during the election campaign.

In the wake of parliament’s passing late last year of the Kerryn Phelps sponsored Medivac Bill and warnings a change of government could restart the flow of asylum seeker boats to Australia there was a clear public interest in Fordham telling his listeners the boats had indeed restarted. Minister Dutton must have thought so too because the same week he travelled to Sri Lanka to discuss people smuggling and on June 20 confirmed in a page one interview with The Australian‘s Simon Benson that one boat from Sri Lanka had indeed been intercepted.

So, even if the timing of the raids was not coincidental, how seriously should we take the so-called threat to a free press?

In my view the media’s case has not been helped by overheated rhetoric suggesting Australia is on the path to totalitarianism because of two raids on journalists, even on successive days. My offices at The Courier Mail and The Australian were raided three times by the AFP. I did not fear totalitarianism. The Australian vigorously supported the Howard Government’s terror laws designed to increase police powers to take preventive action to interrupt terror plots before they occur. My journalists Martin Chulov and Colleen Egan actually made contacts with terror players and put the police in touch with them: Ibrahim Fraser in Sydney and Perth Muslim convert Jihad Jack Roche, who planned to blow up the Israeli embassy, were unknown to police until Chulov and Egan.

The Oz editorialised in favour of legal action to restrict the flow of information and images over the internet on overseas terrorist cells and child pornography, rejecting internet activists’ arguments that freedom online was paramount.

Nor do I believe tracking journalists’ travel plans and metadata, as revealed by The Sydney Morning Herald this week, is a dramatic threat to journalism. Young reporters don’t realise that in the days before the internet authorities had the power to obtain a secret warrant from a judge to track reporters’ Call Charge Records. Without tapping phones, the authorities could find out through Telstra and Optus exactly who reporters had phoned. This is why my investigative reporters often used several different pre-paid mobile phones on a single story. Today reporters need to be more careful of their electronic foot prints.

Nor do I buy the idea that conservative governments such as those of Howard and former prime minister Tony Abbott represent a particular threat to the media. In the US journalists have focussed on President Trump’s attacks on the “fake news media”. Perhaps if the progressive news organisations he criticises had campaigned harder against the press crackdowns of President Obama they might have more credibility now. Between 1917 and 2009 only one government whistle blower was convicted for leaking to the media. Under Obama eight were.

Nor do I believe in source protection as an absolute. In my book Making Headlines and in several columns over the past three years I have argued there is a difference between protecting a whistle blower who provides genuine information of national importance and being used by anonymous political sources to produce stories that damage the source’s political opponents

 or improve the career prospects of the source. If journalists were more careful not to let themselves be used by political sources there would, I am certain, be more public support for the protection of genuine confidential sources.

Here I am referring to the sorts of leaks used by former prime minister Kevin Rudd to damage opponents on his way towards party leadership and to hurt rivals after he had lost the leadership to Julia Gillard. The media would lose little and gain much in credibility if it forced such leakers to go on the record. The body politic would also be better off by appearing more transparent to voters.

Yet I am certain the whistleblowers in the Wallah and Kessing cases deserved protection rather than a police and legal witch hunt. I am certain the corporate whistle blowers who have contacted Adele Ferguson after failing to get action through the legal processes of the Whistle Blower Protection Act deserve better. Commonwealth Bank whistle blower Jeff Morris, ATO whistle blower Richard Boyle and former CBA chief medical officer Dr Ben Koh have been hounded for doing the right thing. The Hayne Royal Commission is clear about this.

It is not just whistle blowers. The failure of the Coalition to reform Sections 18c of the Racial Discrimination Act, the persecution of cartoonist Bill Leak and the denigration of rugby union star Israel Folau for simply stating beliefs most Christians held for the past 2000 years and most Polynesian footballers share today suggest something wrong in the national discourse. At a time when the prevailing left wing sentiment of Twitter and Facebook is being used like a McCarthyist weapon to silence free speech

 the media should get more support for its traditional role in exposing the secrets of the great and powerful.

After all, lawyers enjoy legal professional privilege and politicians have privilege in the Parliament. Yet both groups are sceptical of media claims for professional privilege. I would venture more lawyers and politicians have been jailed in the past decade in Australia than journalists.

And with several key defamation actions with severe financial penalties for publishers facing challenging business conditions, most notably in the Geoffrey Rush case, I believe there is a strong case for the Right to Know campaign being led by News Corp CEO Michael Miller, Nine CEO Hugh Marks and ABC MD David Anderson.

After their appearance at the National Press Club in Canberra on 26 June, Miller summarised what the media wants in four points:

1. The warrants regime for searching journalists properties, records and workplaces needs reform. An independent arbitrator such as a judge should weigh the balance between the requirements of an investigation and the need for a free flow of information. The sweeping warrants for the June raids were signed by a magistrate in Queanbeyan with no notice to the media groups involved.
2. Whistle blower protection. Said Miller: “More and more we are seeing the Government and ASIC is wanting the private sector to protect whistle blower… the same processes to protect them need to be in place for those working in (the) public sector.”
3. The number of areas in government in which material is marked secret or top secret. Miller said the government’s former National Security Monitor Bret Walker SC also recommended reform in the area.
4. Journalists need to be exempted from laws that could jail them simply for doing their jobs.

In my view the national security services, police, politicians, courts and the public service work for taxpayers and voters. They are our servants. They should be accountable to taxpayers and voters through the media and at the ballot box.

 Within the necessary constraints of genuine national security matters, the bias should be in favour of transparency.

As I concluded on 17 June, evidence overseas shows it does not have to be like this. Popular culture has made heroes of whistle blowers in the US. Think of Hollywood blockbuster movies such as Serpico, Silkwood and Erin Brockovich. Think of the role of whistleblowing in the Watergate break-in.

American laws even operate an award system that allows whistle blowers to earn as much as 30 per cent of the penalties imposed in legal action against companies defrauding governments.

Whatever your views of journalists, people should think very carefully before they decide a free press, freedom speech, the freedom to offend and religious freedom are not in the public interest.