The below essay won 2004 Australian Press Council Prize
The press in any modern democracy has broad freedoms to access and publish information as part of its duty to inform the public on matters of public interest. Is the people’s right to know inalienable, or is it acceptable that a government restrict publication of information that might be deemed not to be in the national interest in an effort to combat terrorism, or for other reasons? Is an unrestricted press an asset in such times? Discuss with particular reference to the contemporary Australian situation.
Speaking at a lecture at the Australian National University in March 2002, Law Professor John McMillan said “information is the currency of power, the lifeblood of democracy, that knowledge governs ignorance, and the public has a right to know” (Background Briefing 2002). The Australian press has a responsibility to provide the Australian people with this information. The Australian Journalists Association is publicly committed to serving the “public’s right to information” (MEAA 1996). However, in order to fulfil these responsibilities, the press must be allowed free access to information. According to a recent poll of MEAA journalists, 87.1% of journalists believe press freedom is diminishing. (MEAA 2004)
The Australian government formally adopted the policy of open government when it introduced the Freedom of Information (FOI) Act in 1982. The object of the Act was “to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth.” (FOI Act 1982) Indeed the man seen by many as the architect of open government, Labor Prime Minister, Gough Whitlam stated, in November 1972, that the intention of the Australian Labor Party, at that time, was to prevent the public’s affairs from being hidden “under excessive and needless secrecy.” (Terrill 2000)
Unfortunately this attitude towards openness in government appears to be thwarted by those who currently administer it. Factors such as the overusage of exemptions, the bureaucratic attitudes of administrators, the prohibitive time and cost factors, along with changes to the Act, make it more difficult for journalists to provide information to the public. The recent changes to the Australian Security Intelligence Organisation Legislation Act (ASIO Bill) has also restricted access to information for journalists. In the words of John McMillan: “Without openness, executive accountability cannot properly be realised. Without openness, administrative justice is diminished. And without openness, democracy is destabilised.” (Background Briefing 2002)
Australia officially endorses Article 19 of the Universal Declaration of Human Rights, which states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (Human Rights and Equal Opportunity Commission 2001)
However, current world tensions and the war on terror seem to have given the government a mandate to restrict the information that it is committed to releasing, on the basis that the public interest would not be served by its disclosure. Definitions of what is in the public interest are deliberately vague, but according to a memorandum issued by the Attorney General department at the end of 2002, public interest is defined as “something that is of serious concern or benefit to the public, not merely of individual interest”, and it is held that “public interest does not mean of interest to the public but in the interest of the public. ” (Attorney-General’s Department 2002)
In the frequently cited Lange case, the court decided that there is an “implied freedom of communication on matters of government and politics” in the Constitution. And they put forward the extension of the qualified privilege defence to “recognise the duty and interests of all Australians in communicating on political matters.” This includes communication “about all levels of politics and government, both in Australia and internationally, both at election times and between elections.” (Pearson 2004)
Therefore, it is in the public’s interest to communicate on all political matters, but as Harrison points out, in the Harris v ABC case: “The Federal Court has commented that a consideration of the public interest basically involved “a careful balancing of the public interest in citizens being informed of the processes of the government against the public interest in the proper functioning of government. (Harrison & Cossins 1993) Herein lies the rub.
Historically, the question of publishing information regarded as a risk to national security was resolved by the Defence Notice (D Notice) system. Taken up in August 1952 and modeled on the British example, the object was “to prevent the publication or broadcasting of information on defence matters deemed detrimental to national security.” (Maher 1997) The system worked well under this ‘gentleman’s agreement’ between editors and the government for 15 years, to the extent that the system itself was not acknowledged publicly until 1967. After 1982, when the remaining D notices were streamlined, the system fell into disuse. It was dependent on media cooperation and, as the role of the media changed, the flaws were revealed. Maher (1997) puts forward the 1995 coverage of bugging of the Chinese embassy in Canberra by ASIS and ASIO as evidence. A review was recommended in March 1995, but the system has not been overhauled at this time. Maher (1997) remarks that this history serves as “a reminder that the citizenry should be acutely suspicious of government claims that public discussion of a matter should be stifled simply because their government claims that “national security” is implicated.” He illustrates this point with the example of the D Notice that affected ASIS and prevented any informed public debate on the management and accountability of that organisation.
As Terrill (2000) observes in his history of secrecy and openness in the Australian government, the protest against secrecy was the “pervasive feeling that secrecy hid bad government.” He lists numerous examples where the government lied, protected party or departmental issues before public interest, punished public comment by public servants, were inept, corrupt or needlessly secret. As he remarked: “Scandals made secrecy seem illegitimate, useful only for political convenience [and] secrecy could certainly protect undemocratic practices.”
It is for these historical reasons that recent changes in legislation that restricts the press’ ability to report freely on government matters, especially under the guise of national security, should be regarded with suspicion.
In a discussion paper on the FOI legislation, presented to the Attorney General in February 2004, the Australian Law Reform Commission stated “an open accountable government is a central tenet of representative democracies.” It goes further to state that an important part of this ‘accountability’ is to allow the public access to information on policies and government actions. As a representative democracy, effective operation “depends on the people being able to scrutinise, discuss and contribute to government decision making. To do this, they need information.” (ALRC 2004)
However, the FOI legislation allows for exemptions to the provision of information, under the clauses of “national security, defence and international relations.” (Attorney-General’s Department 2002) National security is defined broadly as the “matters concerning the protection of Australia and its population from active measures of foreign intervention, espionage, sabotage, subversion and terrorism and the security of any communications system or cryptographic system of any country used for defence or conduct of international relations.” (Attorney-General’s Department 2002)
These exemption clauses appear to be misused. Journalists report “questions of political implications and potential embarrassment are never far from the minds of FOI officers.” The impression was that many requests are referred to Ministerial advisers for “a ‘political’ check”. Mark Sculley, from the Australian Financial Review, reported that one request resulted in a telephone conversation with the Minister’s press office. This widespread practice, although hard to evidence, appears to be spreading, and none of the journalists believed that “political involvement would have any aim other than to minimise disclosure.” (Waters 1999)
The issuing of conclusive certificates has also attracted criticism. These certificates are issued by a minister or agency to establish conclusively that documents are exempt from disclosure under the FOI Act, and they should not be released on the basis that they “would or could reasonably be expected to damage: the security of the Commonwealth; the defence of the Commonwealth; the international relations of the Commonwealth; or relations between the Commonwealth and a State.” (Harrison & Cossins 1993) Questions were asked recently about Treasurer Peter Costello’s use of conclusive certificates. Michael McKinnon, the FOI editor at The Australian, requested information “relating to taxation rates, the possible misuse of the First Home Owners Grant and the financial implications of our ageing population.” According to McKinnon, Costello used his ministerial position to block documents that would have been issued, as he believed “the release of information might ‘create or fan ill-informed opinion’ or ‘confuse and mislead the public”. In an interview with The Media Report (2003), McKinnon stated: “It might be cynical of me as a journalist to suggest this, but I think the reason may well be that these documents reflect badly on Peter Costello’s performance as Treasurer.”
Government bodies respond to criticism by pointing to the appeal process, however as Harrison notes, the “Commonwealth Ombudsman [for FOI] has said that in his experience, agencies do not always apply public interest tests appropriately when weighing the public interest in favour of disclosure against the public interest in refusing access to documents.”(Harrison & Cossins 1993)
According to Terrill (2000), at the time of publication, the FOI Act had been changed thirty-six times, few of which make it easier for those who access it. As he warned, “an overly candid Tasmanian backbencher has been reported to have observed “only a fool would repeal the Act, we will just keep amending it.”
Journalists have also criticised the prohibitive cost and time factors of accessing information under the Act. According to The Australian, journalist Ross Coulthard reports that there is almost an “automatic process of refusal through the federal government department,” as the agency is aware that the majority of appeals will not be followed up for financial reasons. Other journalists say the time taken to process FOI requests is one of the biggest deterrents. Many believe some government agencies use those delays to discourage applications. (McKinnon & O’Brien 2003)
The second set of recent legislation, passed as necessary to national security, that infringes upon the role of the press is the amended Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003, (ASIO Bill). Passed in June 2003, it is designed to assist ASIO combat terrorism. (Attorney-General’s Department 2004) The Act empowers ASIO agents to “detain and question a person who may have information important to the gathering of intelligence in relation to terrorist activity.” As Williams (2002) noted, the effect on journalism is easy to imagine. Journalists could be detained “without access to legal advice and denied their right to silence or to protect their sources.” Additionally, it cannot be reported that a person has been questioned or detained by ASIO while a relevant warrant is in effect, which could last more than 28 days. The Australian reports that senior management at John Fairfax, News Limited, SBS, Commercial Radio Australia, the Australian Press Council and the ABC all expressed “grave concerns” in a letter to senators. The letter stated that while the media organisations recognised the need to protect ASIO “from disclosures that would compromise its operation – the width of scope of the definition is far too wide.” They were concerned that this legislation could facilitate “a complete media black-out of those matters that are so important in this political climate.” (The Australian 2003)
Additional concerns were raised by Fergus Shiel (2002), Editor of the Age, when he told a Senate committee hearing on the ASIO Bill in Melbourne in November 2002, that by not exempting journalists, the bill forces journalists to choose between their professional ethics and harsh penalties. Also if there was awareness that information received by journalists would be passed to the authorities, this could endanger journalists.
Others have also spoken out about the ASIO bill. Former NSW Premier Neville Wran (2003), in his address to the Law Society’s Annual Members Dinner in October 2003, stated that Australia is the only country that imposes these sanctions on non-suspects. Although he acknowledged the threat of terrorism and the need for protective security measures, he stated that “it is of fundamental importance that in the fight against terrorism we do not do more damage to ourselves and the values we cherish, than we do to enemies of our civilisation.”
Williams draws parallels between the ASIO Bill and the failed Communist Party Dissolution Bill (1950), introduced by then Prime Minister Robert Menzies. The legislation was held by the High Court in March 1951 in the case of Australian Communist Party v Commonwealth (1951), due to its “inconsistency with basic rule of law principles”. Furthermore, Williams states that “the Anti-Communist Bill [is] regarded as one of the most draconian and unfortunate pieces of legislation ever to be introduced into the Federal Parliament” as it threatened deeply held Australian values such as “the presumption of innocence, freedom of belief and speech and the rule of law.” He refers to Prime Minister John Howard, who stated in May 2002 that he believed the Australian people were right in rejecting the bill at referendum. (Howard 2002) Williams (2002) put forward that: “We must not pass laws that undermine the very democratic freedoms we are seeking to protect from terrorism. It is a matter of balance and proportionality, as well as a test of political leadership. If we fail to achieve this balance, we risk losing part of what makes this a great country to live in”
The freedom of the press is also threatened by restrictions under the privacy and sub judice contempt legislation. Criticisms have also been leveled at the Criminal Code Amendment (Espionage and Related Matters) Act 2002, with concerns that this legislation could affect whistleblowers, (Wright 2002) who should be protected in exposing information in the public interest. There is not scope for due consideration of these factors in this discussion.
An unrestricted press therefore is a necessity to the Australian public, especially in times of political conflict. The much-quoted CNN effect is evidence of the affect the media can have on policy making. Lawrence S Eagleburner, former secretary of state to President Bush Snr, admitted: “We sat with our television sets tuned to CNN throughout that whole time (the first Iraq conflict)… CNN has an impact at least on decision makers, because it is there all the time.” He demonstrates this effect by saying that when images of the ‘highway of death’ complete with bloody bodies and smoking military equipment were shown, “the American people felt that enough was enough – the war should end.” (Hess & Kalb 2003)
Historically, the media served an important role in providing information to the public on past wars. According to Shpiro (2002), Vietnam was seen as a war lost by the media’s unrestricted access, as bloody images of Vietnam turned public support against the war.
A restricted media is at risk of potential exploitation from government agencies. As Shpiro (2002) points out: “The timing of the first US military strikes against the Taliban seems to have been planned according to television primetime rating schedules and not only by military necessities.” Green quotes reporter Martin Bell in 1999 noting “during the 93/94 (civil war in the former Yugoslavia) we were allowed to show almost nothing of the effects of the war and even grief was cut out at one time, the mourning of relatives of the victims.” (Green & Maras 2002)
John Pilger pointed to the dangers of a restricted media in an interview with The Media Report: “This (present Iraq conflict) was the most covered war in history. And pretty well everyone missed the story. That’s how organised it was. It was organised to the point that journalists ceased to be journalists. They became functionaries.” He points out that the public gain the erroneous impression that the conflict was victorious with minimal casualties, and he accuses those that control the information of “managing and controlling the news that came out, of tailoring it—often to their lies.” (The Media Report 2003)
The media does need to be aware of the potential for manipulation from both sides of a conflict. Recent terrorist acts like the events of September 11 (Shpiro 2002) and the assassination of Daniel Pearl, the Wall Street Journal correspondent, seemed to have been timed for maximum media effect.
As Shpiro (2002) noted, although a free media is critical to a democratic society, it has a role to play in defending the freedoms of democracy. A balanced view of any debate can only be ensured if the media remains independent. He says that although certain security sensitive information should remain restricted, public support or lack thereof can only be voiced if information is available. He calls on the media to heed its responsibilities and concludes “Objective and critical reporting do not contradict a commitment to the very freedoms the terrorists are trying to destroy. An effective conflict media strategy against terrorism must ensure that the freedoms we wish to defend are not sacrificed in the effort.”
In conclusion, it is not in the interest of the public for the government to restrict information as a part of a national security program, except in the case of extremely security-sensitive information. The public is entitled to be informed of the workings of the government, and an unrestricted but responsible media is in a better position to serve their public. As the Australian Press Council’s Charter of a free press (2003) states: “A free press is a symbol of a free people.”
