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 KENNY

There were times early in my life as a political staffer when a not-yet-extinguished journalistic flame burned with imagination. As chief of staff to the South Australian premier I would flip through my state cabinet folder and fantasise about how many of the submissions could be turned into front page newspaper stories or lead items on the television news.

Later, as chief of staff to the foreign minister, I couldn’t help but ponder how the inside word on briefings in federal Cabinet’s national security committee might make a media splash.

It was never a temptation but often a passing thought.

The media freedom debate is often an adversarial argument between the media (the spillers of secrets) and the politicians, bureaucrats and officials who are the keepers of secrets. My perspective is relatively unique, having been, at various times, in both camps.

After a career in journalism I ventured into political staffing and worked at senior levels over a decade before returning to the media.

Information is the currency of journalism and when you reach a certain level as a political staffer you can find yourself surrounded by riches. Conversely, many in politics crave media adulation and some figure the easiest way to ingratiate themselves with journalists is to leak to them.

Journalism represents the best and worst of our curiosity. Reporters want to know; they want to find out and they want to be the first to tell others. This can be a high-minded pursuit to reveal the truth or right wrongs, and it can be a grubby business of prying and spreading malicious gossip.

The predisposition of journalism to reveal facts and spread the disinfectant of sunlight is a useful force in society but one that surely must not be unfettered. Some sort of tension between the media’s right to know and the propensity for government, commercial, political and personal confidentiality does and must exist.

As in most things, the argument is always around the appropriate balance.

So this is subjective, and it can change as our government, security and media environment changes. In the digital era when everything is changing – even the rapidity at which change occurs – it is no surprise these tensions are being strained.

Most in the media, of course, have never borne the heavy responsibility of holding official or commercial secrets. And many in government, politics and business have never experienced the altruistic curiosity that can drive many journalists. Having experienced both mindsets, I view the latest debate about media freedom with some ambivalence.

Don’t get me wrong; media freedom is vital and must be preserved, and media companies are doing the right thing supporting their journalists and pushing for reform. Some useful ideas are being advanced, such as subjecting police searches of journalistic files to judicial review before they are carried out.

The over classification of material ought be tackled too, with even experienced defence and security hands such as Major General (retired) Jim Molan and former ASIO, Defence and Foreign Affairs chief Dennis Richardson agreeing it is a factor.

We need to ensure this is not a debate about absolutes and that recent events on the journalism side of the equation, as well as the government side, have a bearing.

Being a reporter can be like a sickness. The relentless competition and the endless skipping from one episode to the next cultivates a sense of dismissiveness – human tragedies and historic events are referred to merely as “yarns” in a way that creates a protective distance between reality and the professional observer.

Journalists can be blinded to a lot of other considerations by the lure of the “yarn”.

A reporter’s instinct is to share, to blab. But when journalists make the switch to political staffing, business or the bureaucracy their sensibility should change.

By the time I was chief of staff to the foreign minister and attending NSC meetings, my mindset was focused on the complex issues and how to manage them. Media management, public announcements and communications strategies were just one of many angles to consider and confidentiality, under the law, was a given.

Top secret security clearance can give you access to a realm of sensitive information, fascinating dilemmas and enlightening intelligence but it comes with a heavy burden of responsibility, enforceable under the law. The security clearance process itself underlines the privilege bestowed upon you and the trust that goes with it.

The Crimes Act wields ultimate sanctions but a sense of duty to your country and the people who serve it tends to be the overriding motivator. Well-honed practices that control the distribution and safe-keeping of top secret and other classified material mean you are constantly reminded of the value placed on confidentiality.

This can be a sobering process. On trips to Baghdad soon after the fall of Saddam Hussein, Kabul at the height of the Afghanistan war and Jakarta after the 2004 embassy bombing, I recall security briefings so sensitive that all documents were collected as soon as we read them.

In many countries we were advised to be careful with conversations in our hotels and, of course, on our phones.

Meetings were sometimes held in special safe rooms in embassies, protected from electronic surveillance.

But once, in a mysterious Middle Eastern country, I recall a small group of us including the minister and intelligence agents cranking up the stereo to about 11 in the hotel room then talking into each other’s ears in the middle of the room. Secrets are only as safe as the people holding them and there have been embarrassing tales of misplaced documents.

In 1997, a 93-page dossier containing Australian briefings about Pacific Island nations and their leaders was left on a table outside a Cairns meeting. It included all sorts of dirt, informed by intelligence, about corruption and other activities.

Some of this spy stuff can be amusing. Once I was told an unknown ASIS agent would meet me in an airport lounge to pass on some “safe hand” intel. When I walked in the lounge was filled with a hundred blokes in suits but one of them stood out to me.

He was busy reading a newspaper and no, it didn’t have peep holes, but for some reason he looked like an agent to me, so I asked if he was looking for me. Bingo! Either he was a bad spy or I have good spydar.

Once in Dubai I had arranged to share an early morning lift to the airport with the chief of one of our security agencies. We wasted quite a bit of time at reception chasing up what he believed was a misplaced car booking before he remembered it was booked under a pseudonym.

Security breaches – whether accidental or by design, strategic or malicious – encapsulate human strengths and frailties and are part of the rich media, political and diplomatic dynamic. We are seeing this unfold in real time now with the leaking to the media of British cables from Washington providing strident criticism of President Trump and his administration. It should be no surprise to anyone that the Foreign Office is being investigated to try and track down the source of this damaging leak.

Much of the time this is a deadly serious business. My time in foreign affairs covered the Iraq war, the Bali bombings, the search for WMD, the controversy over the Australian Wheat Board, the emerging threat at home and abroad from Islamist extremist terrorism, international efforts to constrain North Korea and a range of other sensitive and ongoing challenges.

It is instructive for me to think back over that period and consider how much of what I learned through highly classified sources eventually ended up in the public domain. In my experience most of it does become public eventually.

To a large degree government confidentiality is about timing;

 an effort to control information while decisions are being made or responses are prepared. When those decisions are made, or responses happen, the information underpinning them is usually shared.

Let me share an example of how the media and confidentiality tensions play out.

It must have been late 2002 or early 2003 – in the months before the invasion of Iraq when the focus was on compliance with UN resolutions and who might join the US if there was military action. As media adviser to Alexander Downer, I took a call from Laurie Oakes who claimed to have a leaked diplomatic cable that proved, contrary to the government’s assertions, Australia had already decided to join military action.

Oakes provided just enough information that we were able to track down what we thought was the cable in question. It related to the rotation of our naval vessels which had been helping to impose UN sanctions against Iraq for a decade since the first Gulf War. When I explained to Oakes how this context changed everything – it related to an ongoing operation not new deployments – the discussion became heated.

The exchange always stuck in my mind because John Howard was in the office, heard my end of the animated exchange and urged me on.

Channel 9 ran the story, creating misconceptions about the process.

This was a classic case of how isolated leaks of specific documents or sections of them can be misleading without the context available to those involved. Agree or disagree with the decision but Howard’s consideration of this military action, in which Australia was always likely to play a role, was careful, methodical and honest.

Still, aside from the smear of dishonesty, Oakes’ leak might have added to the public debate. In a roundabout way it highlighted the dilemma of the existing naval deployment – would we really spend a decade helping to enforce a sanctions blockade on Iraq and then, when hostilities broke out to enforce those same sanctions, order our ships home?

This is the to-and-fro of the secrets game. Should the diplomat or defence officer who leaked that cable be traced and prosecuted? Was there a public interest served? Was that person a misguided whistle blower, a malicious schemer or someone trying to curry favour with a journalist? Oakes might have a fair idea because he knows where the leak came from; the rest of us are only guessing.

But it is a mistake to think all leaks are worthy, altruistic or harmless. The mass leaks we have seen in the era of Wikileaks, Assange, Snowden and Manning are deeply worrying.

We know they exposed sources, possibly cost lives and certainly endangered operations.

This recklessness dressed up as journalism makes it much harder for responsible journalism to win the argument for greater freedom. For leaks to serve the public interest they must surely do more than expose secrets for exposure’s sake.

This is where media must, and to be fair usually does, show care and responsibility. The dilemma is that media is so fragmented now that the usual checks and balances from editorial leadership in responsible mainstream media often don’t apply. Is Assange a journalist? The Australian journalists’ union thinks so; they gave him and Wikileaks a Walkley Award. What about Snowden and Manning? One journalist’s whistle blower is another person’s traitor. And who gets to draw that fine line?

The starting point in this discussion must be that for governments to function properly and national security to be preserved there must be confidentiality and there must be an obligation on people to respect it. There must be occasions when leaks are investigated and, logically, leakers are prosecuted. The alternative is anarchy;

a situation where the media holds out the temptation of revenge or glory, and there is no disincentive to take advantage of that offering.

While there are legitimate whistle blowers – Deep Throat calling time on Richard Nixon’s criminal conspiracies or Jeff Morris revealing disturbing practices at the Commonwealth Bank – there will always be people inside government, business, defence, intelligence agencies or political offices who harbour a grudge, partisan objectives, malicious intent or just suffer delusions of grandeur.

Think of Godwin Grech. I was Malcolm Turnbull’s chief of staff during that debacle, so it pains me even to mention his name. Although I must say I never met Grech or had any contact or communication with him, we know from the public record that over a period he leaked highly sensitive material from within Treasury to the opposition. He did this when the Rudd Labor government was trying to tackle the global financial crisis.

Apparently, these leaks were accurate but think about the treachery involved, along with the illegality and the possible consequences. Later as we all now know – seemingly because of some Walter Mitty-style fantasy to bring down the government – Grech created a fake email and leaked that too.

We all saw the political drama that unfolded and can discuss that another time, but the point here is what Grech did – was he a traitor, a plotter, a fraudster, a criminal, a fool or a whistle blower?

Or was he all of that and more? And how has he been able to frame himself in the media as a victim?

There must be rules around confidentiality and there must be consequences for breaking them. And, to be frank, if that occasionally means a journalist’s office is searched I don’t think it is too high a price to pay.

Not that police should be able to find anything. Any journalist worth their salt dealing in serious leaks would ordinarily be aware of two points: that the leak might be investigated; and that they need to make sure they leave no trail that will identify their leaker.

This is not necessarily an endorsement of the recent episodes. These seemed farcical in the case of the ABC and over the top when it came to Annika Smethhurst’s home.

 The idea of subjecting such searches to a judicial process before warrants are issued is worth considering but would demand weighing the public interest.

As it stands there is no public interest defence under the Crimes Act although it can be argued as a factor in sentencing. A legislated public interest test might be a wise protection but codifying it won’t be easy. Maybe there is an attraction for government because as long as the test can be reasonably defined it might be better than the current situation where the public interest is effectively defined in practice by journalists and whoever leaks to them.

For its part media needs to be more consistent. Too many, especially in the Leftist media, pick and choose their media freedoms. Journalists who supported the Gillard Labor government’s attempt for de facto regulation of the print media have weakened their arm in the current debate. So have the journalists who cheered for the sanctioning of Andrew Bolt under section 18C of the Racial Discrimination Act – now they pretend to be warriors for media freedom.

Many of these same journalists stood by while the Queensland University Students and the late Bill Leak were pursued under the same laws. And they cheer the sacking of Israel Folau.

Media freedom means freedom of expression for all, not picking and choosing according to fashion or perceived ideology. It is not just governments and police who can have a stifling effect on free expression. How many journalists now demanding transparency wilfully accepted the blind decision-making over the Hindmarsh Island bridge; based as it was, on the Hindmarsh Island Secret Women’s Business that we now know was fabricated?

That’s a timely question isn’t it; encapsulating religious freedom, cultural privilege and government secrecy!

Yes, there should be greater media freedom. But that means more than revealing government secrets, it also means understanding responsibilities and context, and freeing up mindsets within the media.