Illustration: michaelmucci.com
October 2014 will go down as the month in which the federal Parliament made some of its greatest ever inroads into freedom of speech and freedom of the press. Ironically, this occurred only weeks after our politicians extolled the virtues of these freedoms in the debate over section 18C of the Racial Discrimination Act.
It is disturbing that our political leaders have moved so quickly from this to anti-terror measures that impose lengthy jail terms for journalists and others who speak about matters of public importance. It reveals a shallow adherence to freedom of speech, and an unwelcome, authoritarian streakon behalf of the government and the opposition when it comes to restricting democratic freedoms.
Most of the attention has focused on section 35P of the first anti-terrorism bill passed on October 1. This provision says: "A person commits an offence if the person discloses information and the information relates to a special intelligence operation." The penalty is jail of up to five years, or 10 years if, for example, the disclosure prejudices a special intelligence operation.
As Attorney General George Brandis has said, section 35P "applies generally to all citizens". It does not discriminate between people who seek to harm our security by revealing secret information, and journalists and whistleblowers who shine a spotlight on government wrongdoing, incompetence or even the death of an Australian citizen at the hands of an intelligence officer.
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It is not easy for journalists to know whether they are complying with this law. Special intelligence operations are by their nature covert, and the information that cannot be disclosed covers these operations and anything that "relates to" them. This means that the ban extends to other, connected operations by ASIO and agencies such as the Australian Federal Police.
All this can create doubt in the mind of a journalist about whether they can publish a story. They may decide not to do so on the basis that it is better to be safe than sorry. Governments and agencies can exploit this zone of uncertainty by warning off journalists so as to prevent the publication of compromising information.
Brandis has defended section 35P by saying that it is not intended to apply to journalists. If this is the case, it is easy to fix the provision. He should sponsor an amendment that exempts the disclosure of information that is part of a media report in the public interest.
Instead, the Attorney General will direct federal prosecutors to consult with him on any charges laid against journalists. He has said that prosecutions against journalists will only proceed with his consent.
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