The Public’s Right to Know vs The Bureaucracy

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At the Parliamentary Press Freedom inquiry on the 14th of this month, Australian Federal Police commissioner Andrew Colvin refused to rule out the possibility of charging Walkley-Award winning NewsCorp Journalist Annika Smethurst for publishing leaked Intelligence documents in April last year.

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Annika Smethurst

Colvin’s refusal comes despite a directive from Home Affairs minister Peter Dutton on August 9th 

“I expect the AFP to take into
account the importance of a free and open press …..before undertaking
investigative action involving a professional journalist or news media
organisation in relation to unauthorised disclosure of material…”

Smethurst’s reports included a proposal by Home Affairs Secretary
Mike Pezzullo to give the Australian Signals Directorate (ASD) powers to
secretly spy on Australian citizens in order to catch criminals. The
ASD was created as a statuary agency in 2018 following the
recommendations of a 2017 Intelligence review.

 “Under the plan, emails bank records
and text messages of Australians could be secretly accessed by digital
spies without a trace, provided the defence and home affairs ministers
approved.”

Pezzullo’s proposal relied on Government hackers to access critical
public internet infrastructure & in theory represented a significant
expansion of the powers afforded to the ASD, as it currently operates
abroad exclusively.  

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Mike Pezzullo

As a reward for lifting the veil on Pezzullo & the ASD, Smethurst’s home was raided for seven hours by the Australian Federal Police (AFP) in
June this year. The warrant, approved by an ACT magistrate gave powers
to search her home, computer and mobile. This came only one day prior
to the AFP raiding the ABC for publishing their 2017 scoop ‘Afghan Files’, detailing clandestine Australian special forces operations & extra-judicial killings in Afghanistan.  

The AFP’s official statement concerning the Smethurst search warrant read

“The activity is in regard to an
investigation into the alleged unauthorised disclosure of national
security information that was referred to the AFP.”

The timing is certainly strange considering the publication took
place several months prior & being so close to the ABC raid. If I
were a gambling man, I’d put a few quid on ‘intimidation.’ 

Pezzullo, told the committee that the ASD leaker should ‘go to jail,’
and was clearly playing ‘Canberra Games.’ Fighting words from the bloke
who’s initial hot-take on Smethurst’s scoop was “there’s no whistle to be blown here” and shrugged it off as inaccurate reporting.

There is great irony when Pezzullo ruminates from a tax-payer funded position over a leaked policy he
authored to secretly spy on Australian citizens. Rather than
acknowledging the over-reach, in what is perhaps testament to the
mindset of unaccountable government officials, he calls for the jailing
of the bureaucrat who leaked the proposal. It’s difficult to argue
there’s a better display of Canberra Gamesmanship than trying to lock-up
the people you tried to spy on. 

What is to be learned?

Firstly, the leaked proposal personifies so much of what is wrong with it. Public organisations have an extraordinarily poor record of maintaining network security, particularly when hiring outside contractors to execute a project, & to operate under the assumption that expanding ASD power doesn’t simultaneously and proportionally enlarge the incentives and powers of hostile actors is to ignore history completely.

The security of the data is always as safe as it’s weakest link, and so to rely on all government-friendly hackers to act as benevolent interjectors is naive at best. Especially when the architects of the proposal are so keen to intimidate those who believed it to be antithetical to Australian values in the first place.

It is entirely possible that the Government hackers and other employees of those like Pezzullo who so vehemently inveigh against press freedoms are likely to invoke their own powers for some rewards, financial or otherwise. 

This argument only echoes the need to protect Julian Assange, &
the Government’s refusal to lobby for his safe passage shows just how
morally purblind the State is towards corruption-uncovering journalists.
When the CIA & NSA are unable to safe-keep their own data,
with budgets and brainpower far outweighing Australian agencies, how
can we with any degree of certainty rely on domestic Intelligence to do
so. We are all that much safer knowing what everyone else knows. 

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Julian Assange

Secondly, the Inquiry and focus on Smethurst’s disclosure has only further illuminated how scarcely protected press freedoms really are. As Denis Muller has pointed out, the Australian Government has legislated two diametrically opposed positions, except the scales are heavily tilted against journalists and whistleblowers.

On the one hand, around 75 national security laws lay the foundation for state-secrecy and outline the penalties for leakers. On it’s finger-missing frost-bitten counterpart, buried deep within the Criminal Code Act is an abstract whistleblower defence for Journalists, which provides protection only if 

“the defendant was acting in the
capacity of a journalist reporting news, presenting current affairs or
expressing editorial or other content in news media, and..reasonably
believed that receiving and publishing the information was in the public
interest.”

Of course the wording of the defence is so acutely vague, that what constitutes a ‘journalist’, ‘reasonable belief’ & ‘public interest’ ultimately isn’t decided by the court of public opinion, but by a court of criminal law. It would be difficult to make a case that doesn’t linger in ethically penury which contends that the public’s interest isn’t tied to knowing who is spying on them.

Smethurst should have been exonerated well before the press inquiry, however it presented a perfect opportunity for the AFP to declare in unequivocal terms it’s allegiance to Australian citizens first and foremost. It chose not to. 

These are of course very pressing and immediate issues, however there remains an ominous cloud over the whole ASD scandal.  Although Australian Government or Intelligence services may not be entirely rogue or divorced from consequence, we need not look very far to see examples where agencies wander off.

Between the NSA spying scandal and various clandestine CIA operations, it’s obvious that taxpayer funded intelligence agencies can be weaponised when given the means or authority to do so. Considering the instability of data warehousing it is difficult to say with any conviction that Australians are any safer with expanding ASD powers.

What can be almost guaranteed is that ordinary citizens drop one rung lower on the information ladder and become relegated to a chess piece ready to be leveraged in negotiations occurring in lands far away. 

Journalists like Smethurst and Assange should be protected at all costs, they are shining lights in an otherwise secretive & sordid landscape. They should be venerated, not detained and raided.

Alexander Cameron is a Host on the Carnage House Productions Show. This article originally appeared on their website.

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