Welcome to the machine

Even before the Espionage Bill was introduced to Parliament, Australia was already well down the path of legislating prison terms for journalists reporting in the public interest, as Andrew Fowler explains in this edited extract from his book “Shooting the Messenger: Criminalising Journalism”

The US National Security Agency headquarters, Fort Meade, Maryland

Just half an hour’s drive north-east of Washington DC, the well-paved dual highway passes a forest before a final line of trees gives way to more open ground. On the left, looking like a sprawling shopping complex which has outgrown its site, the National Security Agency (NSA) appears. This is the headquarters of the most powerful intelligence-gathering organisation the world has ever seen.

It is the centre of a network that straddles the Earth. From the spy base at Pine Gap with its array of antennas pointing skywards against the sunset red of the Australian outback, to Menwith Hill on the green undulating farmland of Yorkshire in the north of England, the NSA is connected to satellites circling overhead, and undersea surveillance systems tapping into transcontinental telephone cables.

Nearly every phone call, email or electronically created signal will at some time end up here, or in one of the data storage bases of the NSA’s sister agencies in Australia, New Zealand, Canada or the UK. Known as the Five Eyes partnership, the intelligence-sharing agreement has its roots in the days of the British Empire.

If you use a telephone or the internet, nowhere on the planet is safe from the prying ears and eyes of the NSA and its sister agencies. Every mobile phone tower, every email, every payment at the supermarket, every digital transaction adds to the profile the NSA is capable of building on every person on Earth. Huge databases scattered across the world log the digital footsteps and fingerprints of us all.

Throughout the Western liberal democracies new laws have given governments greater powers to eavesdrop on the population and the journalists whose job it is to keep them informed. Those laws, which gave governments such sweeping surveillance powers, were introduced ostensibly to track terrorists and reduce the number of attacks. But detailed analysis suggests the so-called anti-terror surveillance laws have not achieved what governments promised.

Instead they have often been more effectively used to track down whistleblowers and criminalise the work of journalists. The notion that the central role of journalism was to disclose secrets which powerful interests wanted kept from the public was being upended, particularly in the important area of national security.

New laws being shaped, both in the US and elsewhere, made illegal that which had been normal journalistic practice and made legal the activities of intelligence agencies which had previously been outlawed. Against sometimes hysterical claims from US politicians, other nations fell in line.

In Australia sweeping laws demanded that the metadata of all phone calls should be held for two years by the telecommunications companies, on behalf of intelligence and police agencies, exposing journalists and their sources to being tracked by the very organisations it is their responsibility to hold to account.

The new laws give virtually no protection to journalists — and in particular their sources. One draconian piece of legislation made it an offence punishable by up to 10 years prison in certain circumstances for a journalist to reveal what the national Australian Security Intelligence Organisation (ASIO) determined was a Special Intelligence Operation (SIO). Since ASIO would neither confirm nor deny an SIO, it was impossible to know if a journalist was about to break the law until the report was broadcast or published.

All this is happening as newspapers across the political spectrum have become weakened by plummeting circulation figures, their owners either unwilling or unable to stand up to governments.

Journalists who see their role as telling truth to power are under extreme pressure as to protect themselves as they attempt to carry out their historically designated role of holding executive authority to account.

Without the US guarantee of freedom of speech and publication, or the European Court of Human Rights rulings supporting the right to protect the identity of sources, Australia is marooned mid-way in a legal version of a choppy Atlantic Ocean. The country might have produced some of the most outspoken proponents of libertarian free speech in Rupert Murdoch and Julian Assange but Australian laws restricting expression are some of the most draconian in the world.

In September 2012 the then attorney-general, Labor’s Nicola Roxon, proposed the introduction of a data retention law. In 2015, the Telecommunications (interception and Access) Amendment (Data Retention Act (2015) passed through the Australian Parliament. Telecommunications companies would be forced to store metadata on all Australians for two years. Though Australia’s Parliamentary system is based on that of the UK, for Australian journalists there were none of the protections afforded by the European Court of Human Rights.

In an attempt to assuage journalists’ fears that their sources were vulnerable to exposure, the government offered what it suggested was a compromise: to get access to journalists’ data, security and police agencies would need a Journalist Information Warrant, signed off by a judge. But it would be no normal court: any hearing would be held in secret and the journalist would be kept unaware of the request to look through their metadata. They would be represented, without their knowledge, in the secret court by an advocate appointed by the government. In the event that the journalist became aware they were under investigation, there was another twist to the law. Public disclosure of the existence of a warrant would be punishable by two years’ imprisonment.

In the event the application of a Journalists Information Warrant came from ASIO, there would be no judge or public advocate potentially standing in the way, representing the journalist. The signature of the Attorney-General would be sufficient to give the domestic spy agency access to any journalist’s metadata.

Six months earlier, in response to the (Edward) Snowden disclosures, Parliament had passed a law that gave ASIO even more power, as the government responded to the Snowden leaks. The National Security Legislation Amendment Act (2014) introduced a three-year prison sentence for intelligence officers who removed or copied classified material without authorisation. If the information was given to a third party, for example a journalist, the officer could face 10 years in prison. And to prevent any outside scrutiny of the intelligence organisation the government rushed through a law which made it extremely difficult for ASIO’s actions to be investigated by journalists.

Section 35P of the Act created an offence which makes it a crime, with a possible sentence of five years, to disclose information about a “special intelligence operation” — an SIO. If the disclosure endangered anyone’s health or safety — or the effective conduct of an operation — then the maximum sentence increased from five to 10 years.

The all-encompassing nature of the law placed journalists in an impossible legal position. If they reported, even inadvertently, on an SIO, they could be charged. If they tried to check with ASIO, they would also potentially run into trouble: even discussing an SIO would itself be illegal. There was no defence that the public had a right to know about botched ASIO operations. ASIO would only be answerable to the Inspector General of Intelligence, a government-appointed official.

After a strong campaign by newspapers and the electronic media, MEAA and the Walkley Foundation, the government eventually amended the law, introducing a defence of “prior publication”. That meant that if another publication had already reported the event, the journalist might be in the clear. In other words the best legal defence was to get beaten to the story.

In early 2017 the Australian government began examining the possibility of including the cover of SIOs to the Australian Federal Police. Already a journalist could be imprisoned for between six months and seven years for “receiving” any “sketch, plan, photograph, model, cipher, note, document article or information” covered by the Official Secrets section of the Crimes Act (1914).

Coupled with the Data Retention Act and the ASIO Amendment Act it would make reporting on significant matters of national security, that much more difficult for journalists, and make whistleblowers that much more wary of speaking out.

Australia, the nation that had passed more counter-terrorism legislation than any other place on earth, now had specific law targeting journalists, a knee-jerk reaction to the Snowden disclosures which had done so much to make the world aware of the dangers of mass surveillance.

- Andrew Fowler is an award-winning investigative journalist and a former reporter with the ABC’s Foreign Correspondent and its premier investigative TV documentary program Four Corners.