Commentary / World

Press freedom: 'No one is above the law' is a slogan, not a policy

by Ramesh Thakur

On the one hand, Australia lacks media protections of the type found in the United States and Europe that enshrine free speech in human rights charters. On the other hand, it seems to have more national security and anti-terror laws than any other Western democracy. George Williams, dean of law at University of New South Wales, has tabulated around 75 such laws since the terrorist attacks of Sept. 11, 2001. The resulting repressive legal regime gives the executive wide-ranging powers to hide any damaging or embarrassing information by classifying it as secret, and simultaneously to criminalize investigative journalism.

On June 4, seven police officers searched the home of News Corp’s Annika Smethurst. The next day, another team rifled through documents at the ABC’s Sydney office and ferreted away over 9,000 electronic files. Smethurst had filed a story last year about a proposal to give new powers to a federal agency to engage in domestic spying on citizens. The ABC’s crime was to have reported in 2017 on possible unlawful killings by Australian commandos in Afghanistan. Both were serious reports on matters of vital public interest.

In distancing himself from the police raids, Prime Minister Scott Morrison insisted that no one is above the law. Such Pontius Pilate-like washing of hands is silly, historically ignorant and demonstrably false.

It’s silly because it regurgitates a slogan bereft of any policy content. A law that grants police unchecked powers is an ass. For if any law can be abused, it will be: some day, somewhere, by someone. Laws are not divine commandments but imperfect products of fallible human beings and interpreted and enforced by them. Protecting the core values and principles on which our political system is based and operates is the responsibility of the political leadership, not the police. Outsourcing to the police the decision on the legitimate boundaries for journalists is tantamount to paving the first stones on the path to East German, apartheid South African or Soviet-style police states.

It is historically ignorant because it overlooks the innumerable examples of regimes that previously have criminalized that which today is perfectly respectable. The Holocaust was the ugly result of criminalizing Jewish identity. In apartheid South Africa, the police acted within the law in jailing those who defied the hated pass laws, yet today the apartheid regime itself is held to have been criminal. Mahatma Gandhi’s first major act of civil disobedience in India was to defy in 1930 the notorious salt tax levied by the British Raj.

It is false because the raids on the ABC offices were in relation to alleged violations of international humanitarian and human rights laws by Australian soldiers. Blowing the whistle on state crimes is not a threat to national security; only to the reputation of ministers and generals. Both Labor and Coalition governments have been complicit in prosecuting whistle-blowers who brought to light illegal spying by Australia’s intelligence agencies on East Timor in order to benefit a private-sector company.

“First they came” is a poignant poem by Martin Niemoller about the inactivity of German intellectuals in Nazi Germany and the purging of their chosen target groups one by one. Because “I” was not a communist, unionist or Jew, Niemoller writes, “I did not speak out.” The poem concludes: “Then they came for me and there was no one left to speak for me.”

The Australian media can be similarly faulted for failing to speak out in defence of the same principles in the cases of Bradley/Chelsea Manning, Julian Assange (an Australian) and Edward Snowden: duty to expose criminality, a journalist’s duty to protect sources even at the risk of prison and press freedom. Remember the chilling video called “Collateral murder of a U.S. military helicopter” that killed several journalists in Baghdad in 2007, and then fired on unarmed adults and children in a minivan trying to take the wounded to hospital? That was leaked by Manning and published by WikiLeaks and the expose was very much in the public interest.

Of course every government has the right to keep some information and decisions confidential. It does not automatically follow, however, that the government has a matching right to use any means necessary to catch and punish those who leak classified information. Most “leaks” are in fact by governments for PR purposes, to show themselves in a good light or to embarrass and discredit political opponents and critics.

The first instinct of any government is to conceal information that would be a political embarrassment, even if it causes no harm to national security. Conversely, prosecutions will be fully warranted after publication if this did indeed cause demonstrable harm like loss of life. The easiest way to keep embarrassing evidence secret is to classify them as secret, and criminalize their release by unauthorized personnel, receipt by unauthorized personnel or outlets, and publication. And then to hide behind the slogan: “Let the law takes its course, no one is above the law”.

Governments may legitimately conduct a thorough internal investigation to try and discover the source of any leaks. The boundary of permissibility stops inside the walls of government departments. Police should not have the right to search the home or office of journalists.

Well-intentioned bureaucrats and ministers bristle at the suggestion that their actions breach foundational norms of democratic theory and practice. It is easy for them to forget that even if their actions today are done in the genuine belief of protecting our society and polity, they set precedents for the future. If allowed to stand, these precedents will inevitably tempt their successors in office someday in the future to abuse the powers for purely political, and possibly even criminal, purposes.

The raids will have a chilling effect on public disclosures motivated by the imperative to expose conscience-troubling actions inside government. Deniability through a distancing of ministers from police actions is not good enough. Parliament must conduct a public inquiry into who in the public service authorized the raids and hold them to individual account. For they are not serving the public but shielding bruised egos.

Ramesh Thakur is an emeritus professor in the Crawford School of Public Policy, Australian National University. A longer version of this article was published on the site Pearls and Irritations on June 10.