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Issue #1872      June 12, 2019

“This warrant relates to … ”

Last week the Australian Federal Police (AFP) raided the ABC Sydney offices and a News Corp journalist’s home, stunning media outlets, other organisations and individuals in Australia and around the world. The raids come from a post-election, emboldened government signalling a crackdown on whistle blowers and freedom of the press.

In particular, the government and Australia’s numerous spy agencies are concerned about leakages of matters that are covered by various levels of security such as “Secret”, Top Secret”, “Australian Eyes Only”, etc.

Australia, according to an article in the New York Times, has passed more than 60 pieces of legislation since 9/11 relating to secrecy, spying and terrorism, all in the name of “national security”. (“Australia May Be the World’s Most Secretive Democracy”, 05-06-19) This is part of a global trend and shift to the right in politics.

At the same time, as in Australia, the US and other western “democracies” have been silencing their critics, taking action against environmentalists and others challenging the activities of political donors, clamping down on democratic rights and targeting whistle blowers and the media.

House raided

Last Tuesday the AFP raided the home of journalist Annika Smethurst, in an outrageous act of intimidation – a warning to any journalist who might consider revealing information that might prove embarrassing to government or its agencies.

The press statement on the raid of the journalist’s home in Canberra said, “This warrant relates to the alleged publishing of information classified as an official secret, which is an extremely serious matter that has the potential to undermine Australia’s national security.”

Smethurst reported allegedly confidential correspondence between the heads of the Department of Home Affairs and Department of Defence on the role of the Australian Signals Directorate (ASD), a critical component of Australia’s international espionage. The proposal was for it to be used to also spy on people in Australia.

The Prime Minister at the time, Malcolm Turnbull, reportedly was not in agreement and the proposition is believed to have been dropped.

Media Entertainment and Arts Alliance (MEAA) president Marcus Strom, described the raid on the journalist’s home as “outrageous”. “Yet again, we have an example of a government aiming to punish those who have brought to light vital information. Australians are entitled to know what their governments do in their name,” Strom said.

The leakage caused great consternation because of the important role that the ASD plays in foreign intelligence, cyber security and offensive operations.

The Afghan Files

The next day, the AFP raided the ABC, Australia’s national public broadcaster, seriously undermining its independence and the right of the public to know what the government is doing in its name.

“The Australian Federal Police (AFP) has executed a search warrant on the Ultimo premises of the ABC today (Wednesday, June 5, 2019) in relation to allegations of publishing classified material, contrary to provisions of the Crimes Act 1914,” the AFP said in a press statement.

“The search warrant relates to a referral received on 11 July 2017 from the Chief of the Defence Force and the then-Acting Secretary for Defence.”

On July 11, 2017, the ABC’s 7.30 program released a major investigation called The Afghan Files. It exposed some of the activities of Australian special forces, including 10 incidents between 2009 and 2013, where they had allegedly
shot dead unarmed civilians, including children as well as insurgents.

Lawyer and former legal adviser to Australia’s special forces in Afghanistan, David McBride faces five charges for leaking classified material on war crimes investigations that were allegedly handed to three senior journalists at the ABC and then Fairfax Media newspapers. He was arrested and charged on September 5, 2018 by Australian Federal Police.

His case is listed for a preliminary hearing on June 13 in the ACT Supreme Court.

He said he wanted the court to simply consider whether the government’s actions were illegal and whether it was his duty as a lawyer to report it. “They’ve threatened me all along with going to jail. If I was afraid of going to jail, why would I have been a soldier?”, he told the ABC.

To her credit, the ABC’s new manager Ita Buttrose strongly condemned the actions of the AFP. She went as far as saying that the raid on the ABC was “designed to intimidate.”

If found guilty of the alleged crimes then the journalists involved and those leaking the information face the possibility of jail sentences.

The acting commissioner of the Australian Federal Police, Neil Gaughan, faced a tense media at a press conference in Canberra as he attempted to justify the two raids. He insisted there was no involvement by the government or individual ministers in the investigations into reports by the ABC and News Corp Australia.

He denied that the raids were intended to intimidate journalists, failed to explain why the journalist’s home, and not her office, was searched. Nor did he explain why they raided the ABC Sydney offices and not its offices in Melbourne, the location of the two journalists being investigated.

Ducking for cover

Not surprisingly Prime Minister Scott Morrison defended the actions of the AFP, while saying his government “is absolutely committed to freedom of the press”. He stressed that the matters were “pursued by the AFP operationally at complete arm’s length from the government, not in the knowledge of the government, not at the instigation of government ministers.”

Really!

Labor shadow defence minister Richard Marles described the raid as “outrageous” and said Labor is committed to the public interest test for journalists. He called on the government to confirm it believes in freedom of the press. Marles’ Labor colleague, shadow Attorney-General Mark Dreyfus, wrote to Prime Minister Malcolm Turnbull back in April 2018 calling for an investigation:

“I am sure I do not need to emphasise with you the gravity of such a security breach. The documents described in the media appear to be extremely sensitive and divulge information about one of Australia’s key security agencies. It is therefore incumbent on you to establish an investigation into how such sensitive information held by members of your government was able to find its way into the public domain,” the letter said in part.

He got his investigation!

Gagging whistle blowers

Law after law has been passed in the name of protecting “national security” and the safety of Australians from “terrorism.” Labor has given bipartisan support to the Coalition’s legislation, sometimes with a few amendments.

“Last year, the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (the Espionage Act) added a new and very worrying espionage offence into
the Criminal Code. Under that law,
put very simply, it is now an offence
to “deal with” any information that “relates to”, is “connected with” or is “of interest or importance to” Australia’s national security or political or economic relations with a foreign country.” (MEAA, 2019 Press Freedom Report, pressfreedom.org.au)

The Act’s provisions are open to extremely and dangerously wide interpretation and maximum penalties are incredibly high – life imprisonment where the act is intentional or 25 years if the act is reckless.

The decryption bill was rushed through late last year with Labor’s approval without amendments. The legislation gives police and security organisations such as ASIO new legal powers to access decrypted communications to assist in their covert surveillance of individuals and organisations.

“It seems clear to all outside of law enforcement bodies that allowing such trespasses will lead to widespread breaches of personal and professional privacy and of course, lead to journalists being disabled from ensuring that their sources are protected,” Media Entertainment and Arts Alliance CEO Paul Murphy said in an MEAA submission to the Parliamentary Joint Committee on Intelligence and Security.

“This bill would grant access to the communications data of journalists without any proper judicial oversight, and with no consideration of the need to protect public interest reporting. Journalists increasingly rely on encrypted communications to protect the identity of confidential sources. Offering this protection is vital. It gives whistle blowers the confidence to come forward with public interest concerns. In the absence of that confidence many important stories will never come to light …”

The legislation requires backdoor access to encrypted communications – a measure that would weaken overall security of the work of journalists, whistle blowers and possibly all those who use the server.

The metadata bill requires the retention of users’ metadata for two years, including internet-browsing histories, by communications providers such as Telstra and Google’s Gmail.

The retention of metadata enables governments to trace communications between a whistle blower and
a journalist, jeopardising the confidentiality of the source and providing a basis for prosecuting breaches of secrecy laws, like the espionage law.

As currently worded, the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 poses dangers for journalists who publish atrocities that they are trying to draw to the world’s attention.

When it comes to the right to know by Australians, the very same reactionaries who preach “freedom” of speech as an absolute when it comes to bigotry and hate speech, enact the most intimidatory, punitive, and restrictive legislation curbing press freedom.

“Whistle blowers are a cornerstone of the fight against corruption and are key to ensuring that governments, companies, and public services are held accountable. In Australia, whistle blowers have exposed the
false pretences on which we’ve
gone to war, police misconduct, corruption, dangerously inadequate clean-up of nuclear waste, the medical malpractice of surgeons, and cruel treatment of asylum seekers in immigration detention.” (MEAA)

The government stands by and does nothing as Julian Assange, the founder of WikiLeaks, faces the chilling prospect of torture and imprisonment in the US for exposing state crimes.

In 2011 the WikiLeaks organisation was awarded the Walkley Award for Most Outstanding Contribution to Journalism
– in recognition of the impact WikiLeaks’ actions had on public interest journalism by assisting whistle blowers to tell their stories. The judges said WikiLeaks applied new technology to “penetrate the inner workings of government to reveal an avalanche of inconvenient truths in a global publishing coup.

There are numerous other cases of whistle blowers who face criminal prosecution for informing the public for the public good. They have not threatened national security.

“Laws that are meant to protect the community and go after terrorists are being used to muzzle the media, cloak the government in secrecy, hunt down and identify journalists’ sources, and imprison journalists for up to 10 years for reporting matters in the public interest,” MEAA’s Murphy said.

“The public’s right to know is a key tenet of a healthy, functioning democracy – and it is one of 
the responsibilities of open and transparent government. It’s also a cornerstone principle of journalism”.

War footing

At the same time as the encroachment on democratic rights and rise in secrecy surrounding government, there is a trend towards militarisation.

The navy has been conscripted into “protecting” our borders from leaking vessels overloaded with asylum seekers fleeing war, persecution, terror and death. Everything to do with “boat people” and “turn-backs” has been cloaked in secrecy as if to say anything about “water matters” would threaten Australia’s security.

Immigration became part of the new Border Force, a paramilitary outfit under Liberal Party reactionary Peter Dutton.

The secrecy surrounding offshore detention centres was enacted in legislation, with anyone working in those centres speaking out about conditions facing the possibility of a jail sentences.

Whistle blower protection is turned on its head, with whistle blowers punished and the criminals let off. From here it is a simple step for governments to arrest journalists, shut down media outlets or silence journalists forever.

In the chat on the New York Times Facebook the question was asked: “Does the ABC need to move its headquarters offshore to protect their independence? Does the New York Times have a cubicle or two to spare in the interests of a free press?”

The timing of the raids raises questions. Why now when so much time has elapsed if national security was at risk? How could these two alleged breaches threaten national security?

The raids serve as a warning to whistle blowers who leak to journalists when they become aware of corruption, fraud or other criminal or unethical practices.

The attempts to intimidate would-be whistle blowers and media and to prevent leaks has another perhaps more sinister agenda than first meets the eye.

The US is preparing for war. Australia is preparing for war as the US’s most loyal ally in the Asia-Pacific. In today’s military, digital technology plays a key role in all the military’s operations. The Five Eyes intelligence community of the US, Canada, UK, New Zealand and Australia is one of the leading espionage groups in the world. Japan, Singapore and Israel have close ties with it.

It is a group which exchanges highly sensitive intelligence and cannot afford any leaks. The AFP’s Gaughan in his press conference made the point that Australia is reliant on the top secret and secret information it receives from its Five Eyes partners.

“If we can’t be seen to protect our own internal information, we are concerned the information flow to us dries up,” Gaughan said. The raids were in response to alleged security breaches.

Our rights and freedoms are being eroded and there is little in the way of action to restore these rights. The trade union movement (see Editorial) is on the move and it is important it continue to build its Change the Rules campaign.

Next article – Editorial – Your rights under attack

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