Why the raids on Australian media present a clear threat to democracy



On Wednesday, the AFP raided the ABCs Sydney headquarters in relation to the 2017 “Afghan files” report.
AAP/David Gray

Rebecca Ananian-Welsh, The University of Queensland

The Australian Federal Police has this week conducted two high-profile raids on journalists who have exposed government secrets and their sources.

On Tuesday, seven AFP officers spent several hours searching News Corp journalist Annika Smethurst’s Canberra home, her mobile phone and computer. The AFP linked the raid to “the alleged publishing of information classified as an official secret”.

This stemmed from Smethurst’s 2018 article, which contained images of a “top secret” memo and reported that senior government officials were considering moves to empower the Australian Signals Directorate (ASD) to covertly monitor Australian citizens for the first time.

Soon after, 2GB Radio Presenter Ben Fordham revealed he had been notified by the Department of Home Affairs that he was the subject of a similar investigation, aimed at identifying the source of classified information he had reported regarding intercepted boat arrivals.

And then on Wednesday, the AFP raided the ABC’s Sydney headquarters. This dramatic development was in connection with the 2017 “Afghan files” report based on “hundreds of pages of secret defence force documents leaked to the ABC”. These documents revealed disturbing allegations of misconduct by Australian special forces.

The reaction to the raids was immediate and widespread.

The New York Times quoted News Corp’s description of the Smethurst raid as “a dangerous act of intimidation towards those committed to telling uncomfortable truths”. The Prime Minister was quick to distance his government from the AFP’s actions, while opposition leader Anthony Albanese condemned the raids.

But to those familiar with the ever-expanding field of Australian national security law, these developments were unlikely to surprise. In particular, enhanced data surveillance powers and a new suite of secrecy offences introduced in late 2018 had sparked widespread concern over the future of public interest journalism in Australia.

The crackdown of the past few days reveals that at least two of the core fears expressed by lawyers and the media industry were well-founded: first, the demise of source confidentiality and, secondly, a chilling effect on public interest journalism.

Source confidentiality

Upon finding out he was the subject of an investigation aimed at uncovering his sources of government information, Ben Fordham declared

The chances of me revealing my sources is zero. Not today, not tomorrow, next week or next month. There is not a hope in hell of that happening.

Source confidentiality is one of journalists’ most central ethical principles. It is recognised by the United Nations and is vital to a functioning democracy and free, independent, robust and effective media.

One of the greatest threats to source confidentiality is Australia’s uniquely broad data surveillance framework. The 2015 metadata retention scheme requires that all metadata (that is, data about a device or communication but not, say, the communication itself) be retained for two years. It may then be covertly accessed by a wide array of government agencies without a warrant. Some reports suggest that by late 2018, some 350,000 requests for access to metadata were being received by telecommunications service providers each year.




Read more:
Data retention plan amended for journalists, but is it enough?


The government was not blind to the potential impact of this scheme on source confidentiality. For example, obtaining metadata relating to a journalist’s mobile phone could reveal where they go and who they contact and easily point to their sources.

This led to the introduction of the “Journalist Information Warrant” (JIW). This warrant is required if an agency wishes to access retained metadata for the direct purpose of identifying a professional journalist’s source.

So, access to a professional journalist’s metadata in order to identify a confidential source is permitted, provided the access has a particular criminal investigation or enforcement purpose and the agency can show it is in the public interest and therefore obtain a JIW.

This week’s raids suggest that either JIWs could not be obtained in relation to Smethurst, Fordham or the ABC Journalists, or the journalists’ metadata did not reveal their sources, or the AFP did not attempt to access their metadata.

Alternatively, if metadata had identified the journalists’ sources, it is less clear why these dramatic developments took place.

After 2015, journalists were advised to avoid using their mobile devices in source communications. They were also encouraged, wherever possible, to encrypt communications.

But in 2018, the government went some way to closing down this option when it introduced the complex and highly controversial Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.

As well as expanding computer access and network access warrants, the Act provided a means for government agencies to co-opt those in the telecommunications industry to assist agencies with their investigations. This could include covertly installing weaknesses and vulnerabilities in specific devices, circumventing passwords or allowing encrypted communications to be decrypted. A warrant would then be required to access the device and communication data.

It is impossible to know whether Australian journalists have been targeted under the Act or had weaknesses or spyware installed on their personal devices. This week’s raids suggest the AFP would be prepared to target journalists under this framework in order to identify journalists’ confidential sources.

However, this could only be done for some purposes, including in the investigation of a secrecy offence.

Secrecy offences

In June 2018, the government introduced a suite of new espionage, foreign interference and secrecy offences. This included an offence of current or former Commonwealth officers communicating information, obtained by virtue of their position, likely to cause harm to Australia’s interests. This offence is punishable by imprisonment for seven years. If the information is security classified or the person held a security classification, then they may have committed an “aggravated offence” and be subject to ten years’ imprisonment.

This week’s raids reveal just how common it is for public interest journalism to rely on secret material and government sources.




Read more:
Government needs to slow down on changes to spying and foreign interference laws


But the journalists themselves may also be facing criminal prosecution. The 2018 changes include a “general secrecy offence”, whereby it is an offence (punishable by imprisonment for five years) to communicate classified information obtained from a Commonwealth public servant. Fordham’s radio broadcast about intercepted boat arrivals was, for example, a clear communication of classified information.

Again, journalists are offered some protection. If prosecuted, a journalist can seek to rely on the “journalism defence” by proving that they dealt with the information as a journalist, and that they reasonably believed the communication to be in the public interest. The meaning of “public interest” is unclear and, in this context, untested. However, it will take into account the public interest in national security and government integrity secrecy concerns as well as openness and accountability.

Protecting media freedom

Australia has more national security laws than any other nation. It is also the only liberal democracy lacking a Charter of Human Rights that would protect media freedom through, for example, rights to free speech and privacy.

In this context, journalists are in a precarious position – particularly journalists engaged in public interest journalism. This journalism is vital to government accountability and a vibrant democracy, but has a tense relationship with Australia’s national interests as conceived by government.

National security law has severely undercut source confidentiality by increasing and easing data surveillance. National security laws have also criminalised a wide array of conduct related to the handling of sensitive government information, both by government officers and the general public.

And these laws are just a few parts of a much larger national security framework that includes: control orders, preventative detention orders, ASIO questioning and detention warrants, secret evidence, and offences of espionage, foreign interference, advocating or supporting terrorism, and more.

JIWs, and the inclusion of a journalism defence to the secrecy offence, recognise the importance of a free press. However, each of these protections relies on a public interest test. When government claims of national security and the integrity of classifications is weighed into this balance, it is difficult to see how other interests might provide an effective counterbalance.

One of the most disturbing outcomes is not prosecutions or even the raids themselves, but the chilling of public interest journalism. Sources are less likely to come forward, facing risk to themselves and a high likelihood of identification by government agencies. And journalists are less likely to run stories, knowing the risks posed to their sources and perhaps even to themselves.

Against this background, the calls for a Media Freedom Act, such as by the Alliance for Journalists’ Freedom, have gained significant traction. It may take this kind of bold statement to cut across the complexities of individual laws and both recognise and protect the basic freedom of the press and the future of public interest journalism in Australia.The Conversation

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Advertisements

The case of Michaelia Cash and her leaking adviser illustrates a failure of ministerial responsibility



File 20171026 28036 pjf32w.jpg?ixlib=rb 1.1
Michaelia Cash has refused to resign over misleading parliament, claiming she was unaware of one of her staffer’s actions.
AAP/Lukas Coch

Yee-Fui Ng, RMIT University

The federal opposition is continuing to call for Employment Minister Michaelia Cash’s resignation, claiming she misled parliament this week after repeatedly telling a Senate estimates committee that neither she nor her office had any involvement in tipping off the media about a police raid.

Cash’s senior media adviser, David De Garis, later confessed he had leaked information about the raid on the Australian Workers Union’s offices to the press. Cash retracted her statements and De Garis resigned.

Labor frontbencher Tony Burke argued that “the wrong person has resigned”. But Cash has refused to resign, claiming she was unaware of her staffer’s actions. Prime Minister Malcolm Turnbull has defended Cash, saying she acted properly.

Who are these advisers?

Ministerial advisers are partisan staff who are personally appointed by ministers and work out of the ministers’ private offices.

The number of Commonwealth ministerial staff has increased over the years from 155 in 1972 to 423 in 2015.

Ministerial advisers undertake a wide range of functions. Tony Nutt, a long-time former adviser, has said:

… a ministerial adviser deals with the press. A ministerial adviser handles the politics. A ministerial adviser talks to the union. All of that happens every day of the week, everywhere in Australia all the time. Including frankly, the odd bit of, you know, ancient Spanish practices and a bit of bastardry on the way through. That’s all the nature of politics.

The question is what happens if advisers overstep their roles?

Ministerial responsibility and political advisers

According to the doctrine of ministerial responsibility, ministers are responsible to parliament for the acts of their departments.

British academic Sir Ivor Jennings wrote that the “act of every civil servant is by convention regarded as the act of the minister”. And British MP Lord Morrison proclaimed that the “minister is responsible for every stamp stuck on an envelope”.

But it is doubtful that this principle has ever reflected reality. It is rare for ministers to resign or even accept responsibility for the actions of their department, where they were not personally involved.

Ministers should also technically take responsibility for the actions of advisers in their own offices, who are at an even higher level of direct ministerial control than departments.

Even more than public servants, advisers are seen to be acting as alter egos of their ministers. This means ministers should be accountable to parliament for the actions of their advisers – even those they did not authorise.

But what happens in reality is that ministers tend to use their advisers as scapegoats and blame them for controversial events. This is consistent with “public choice” theory, which predicts that politicians have the incentive to deflect all the blame that comes in their direction while accepting the credit for anything that goes right.

How are advisers regulated?

Australia has inadequate legal and political regulation of ministerial advisers. They are subject to a Statement of Standards, which sets out the standards they are supposed to meet in preforming their duties.

Sanctions under the standards are handled internally within the executive through the Prime Minister’s Office. This means any breaches of the standards by ministerial advisers would be handled behind closed doors, without the scrutiny of parliament or any external bodies.

Ministerial advisers have also refused to appear before parliamentary committees on their minister’s instruction. This has impeded the investigations of significant parliamentary committees, including the Children Overboard affair.

Australia thus has minimal legal and political regulation of ministerial advisers. This has led to an accountability deficit, where ministers have been able to utilise their advisers to escape responsibility for public controversies and scandals.

How can we fix the system?

Other Westminster jurisdictions have more stringent regulation of political advisers.

There are a few forms of regulation of advisers. The first is restrictions on the employment of advisers, either through a cap on the numbers of advisers, as in the UK, or a cap on the total budget for advisers, as in Canada.

Second, regulations can restrict the actions of advisers themselves. For example, in the UK, there is a prohibition on advisers leaking confidential or sensitive information, which would have been applicable in this scandal.

Canada has post-employment restrictions banning advisers from becoming lobbyists for five years after ceasing their employment.

Third, transparency measures also exist, such as requirements that departments disclose all meetings that advisers have with the media (as in the UK) and what hospitality these advisers receive (in the UK and Canada).

Ideally, the Australian regulatory framework should be reformed so it is policed externally from the core executive. In Canada, the conflict of interest and lobbying provisions are policed by the Conflict of Interest and Ethics Commissioner, who has been independent and ready to criticise the government.

And, in the UK, the rules provide for political advisers to appear before parliamentary committees. Similar guidelines could be drafted to facilitate the appearance of advisers before Australian parliamentary committees.

The ConversationIn the last 40 years, ministerial advisers have become an integral part of Australia’s system of government. But the law and rules have lagged behind, and our system should be reformed to ensure greater accountability.

Yee-Fui Ng, Lecturer, Graduate School of Business and Law, RMIT University

This article was originally published on The Conversation. Read the original article.

Coptic Christians Gunned Down after Christmas Service in Egypt


Suspected Muslims fire automatic rifle from moving car; congregation had received threats.

LOS ANGELES, January 7 (CDN) — In spite of threats of violence from Muslims in an area of Egypt wracked by sectarian violence, police declined to increase security for a Coptic Christmas Eve service on Jan. 6, and six Christians were shot to death after leaving the church.

Three men suspected to be Muslims, including one with a criminal record sought by police, were in a moving car from which automatic gunfire hit Coptic Christians who had attended services at St. John’s Church in Nag Hammadi, 455 kilometers (282 miles) south of Cairo. A Muslim security guard was also killed, and nine other Coptic Christians were wounded, with three of them in critical condition, according to news reports.

Copts, along with many Orthodox communities, celebrate Christmas on Jan. 7.

The primary Muslim suspected of firing the automatic rifle at the Copts, witnesses reportedly told police, is local resident Mohammed Ahmed Hussein. Local clergy said Hussein had not been arrested for previous crimes because he receives protection from officials in the ruling National Democratic Party.

Hussein reportedly fired while his car traveled some 400 meters. A provincial security official told The Associated Press that those killed were shot 200 meters from the church.

The church’s bishop told Agence France-Presse (AFP) that he had concluded the Christmas Eve mass an hour early, by 11 p.m., for security reasons. 

The clergyman, identified only as Bishop Kirilos, told AFP some of those in his congregation had received cell phone calls threatening that Muslims “will avenge the rape of the girl during the Christmas celebrations.”

In November a local 12-year-old Muslim girl was allegedly abducted and raped by a Coptic youth. In response to the alleged rape, hundreds of Muslim protestors torched Christian-owned shops in the town of Farshut, near Nag Hammadi.

After killing those near the church in yesterday’s attack, the bishop reportedly said, the gunmen continued shooting at Copts in other parts of the town. They reportedly fired at a convent, which also houses the bishop’s offices, as they left town.

Thousands of Coptic Christian demonstrators reportedly took to the streets in Nag Hammadi today to protest lack of protection from Muslim violence. An estimated 5,000 Copts attended the funeral for the six Christians victims.

AFP reported that protestors stoned cars during the funeral, and in response police fired tear gas. Demonstrators reportedly chanted, “With our spirit and blood, we will sacrifice ourselves for the Cross.”

Report from Compass Direct News 

UGANDAN LRA INVOLVED IN CHRISTMAS MASSACRE AT CHURCH


Uganda’s army is accusing rebels of the Lord’s Resistance Army of hacking to death 45 civilians in a Catholic church in the Democratic Republic of Congo, reports Michael Ireland, chief correspondent, ASSIST News Service.

A story on the BBC website quotes Ugandan Army Capt Chris Magezi who said the scene was “horrendous… dead bodies of mostly women and children cut in pieces.” The attack happened on December 26.

A rebel spokesman has denied responsibility for the killings, which follow a collapse in the peace process, the BBC said.

It also reports the UN saying that at least 189 people were killed in several attacks last week. Some reports say more than 100 people were killed in the church alone.

The BBC said the armies of Uganda, South Sudan and DR Congo carried out a joint offensive against the rebels in mid-December after LRA leader Joseph Kony again refused to sign a peace deal.

The BBC reported the LRA leader, who has lived in a jungle hideout in north-eastern DR Congo for the last few years, is wanted by the International Criminal Court for war crimes and crimes against humanity.

It also says Uganda’s government had been involved in lengthy peace negotiations with the LRA, hosted by the South Sudanese government. But LRA leader Kony has demanded that arrest warrants for him and his associates be dropped before any agreement can be struck.

Meanwhile, the UN peacekeeping mission in DR Congo says one of its troops accidently shot and killed a Ugandan soldier in the nearby town of Dungu.

The BBC said that aid officials requesting anonymity near Doruma, which is about 40km from the border with South Sudan, confirmed to Uganda’s Daily Monitor newspaper and to the AFP (Agence France Presse) news agency that the massacre had taken place.

“Bodies of the women and children, with deep cuts are littered inside and outside the church,” an aid official told The Monitor.

Witness Abel Longi told The Associated Press (AP) news agency that he recognized the LRA rebels by their dreadlocked hair, their Acholi language and the number of young boys among them.

“I hid in bush near the church and heard people wailing as they were being cut with machetes,” he said.

However, LRA spokesman David Nekorach Matsanga has denied that the rebels are behind the killings, the BBC reported.

“Reports about the LRA killing innocent civilians is another propaganda campaign by the Uganda army,” he said.

“I have it on good authority from the field commanders that the LRA is not in those areas where the killings are reported to have taken place.” He said the massacre may have been carried out by Ugandan soldiers.

“They want to justify their stay in DRC [Congo] and loot minerals from there like they did before,” he told the AP.

The BBC reports that Capt Magezi said that on Saturday the army had killed 13 of the rebels behind the alleged attack and were pursuing the rest of the group.

The UN’s humanitarian agency Ocha says 40 people were killed in attacks in DR Congo’s Faradje district, 89 around Doruma and 60 in the Gurba area, according to the BBC report.

The BBC story also says that many thousands of Congolese villagers fled their homes after LRA attacks near Dungu in October.

It explains that countries from Uganda to the Central African Republic have suffered 20 years of terror inflicted by the LRA. Tens of thousands of children have been abducted to be fighters and sex slaves.

Uganda’s government said the joint offensive had destroyed some 70 percent of the LRA camps in DR Congo.

The BBC’s Africa analyst, Martin Plaut, says that LRA leader Kony’s force is relatively small, about 650 strong. However, the difficulty is that when it is hit, it scatters and then regroups.

Report from the Christian Telegraph