Australian Federal Police and ASIO raided two Chinese journalists in June as part of an investigation into foreign interference in Australia.
The previously unpublicised action has come to light via Chinese media reports, in the same week that two Australian reporters fled China amid fears for their security and in a blaze of publicity.
The Global Times, a mouthpiece of the Chinese authorities, said ASIO had questioned the Chinese journalists, seized computers and smartphones, and asked them not to report the incident.
The raids, undertaken under a warrant, were connected to the investigation into allegations of attempted Chinese infiltration of the NSW parliament through the office of NSW Labor state MP Shaoquett Moselmane, and in particular his part-time staffer John Zhang. Both Moselmane and Zhang have denied any wrong doing.
Moselmane is on leave from the parliament and suspended from the ALP.
Part of the investigation was into a group Zhang had on WeChat, a Chinese social media platform, that included the journalists as well as Chinese scholars. The ABC reported on Wednesday that two Chinese scholars on the chat group subsequently had their Australian visas cancelled.
The timing of the raids on the journalists coincided with raids on Moselmane and Zhang.
Asked about the Global Times claim, the Chinese embassy in Canberra said in a statement: “We have provided consular support to Chinese journalists in Australia and made representations with relevant Australian authorities to safeguard legitimate rights and interests of Chinese citizens.”
Citing a “source” the Global Times said: “Australia flagrantly infringed on the legitimate rights and interests of journalists from Chinese media and institutions in Australia in the name of a possible violation of Australia’s anti-foreign interference law”.
The Chinese have sat on the information about their journalists for more than two months.
This week the ABC’s Bill Birtles and the Australian Financial Review’s Michael Smith were rushed out of China after Australian government concern for their security.
Last week multiple Chinese security officials arrived after midnight at the homes of Birtles and Smith, in Beijing and Shanghai respectively. They were told they couldn’t leave the country without answering questions.
The men had been making arrangements to depart, on advice from the Australian foreign affairs department, after Australian journalist Cheng Lei, who worked for China’s English-language state broadcaster CGTN, was recently taken into custody.
The Chinese government says Cheng is suspected of activities endangering China’s national security.
Birtles and Smith contacted Australian officials following the late night visits, and were placed under diplomatic protection, with negotiations undertaken to enable them to return to Australia.
The Chinese made the journalists’ exit conditional on their being interviewed. Smith said the interview included some questions about Cheng whom he had only met once, in passing.
In a full-on attack, the Global Times wrote: “Freedom of the press has become political correctness for Australian authorities. When they spread fake information, smear and attack other countries, they call it ‘freedom of the press’, but when they see information they don’t want to see, they choose to crack down for political purposes, experts said.
“Chinese journalists in Australia strictly comply with Australian laws and have good professional conduct.”
The article said that in the past 20 years, “Australia has passed more than 60 rules restricting ‘press freedom’.
“Australia’s major media outlets launched a joint campaign on October 21, 2019 to protest government restrictions on press freedom, by blacking out copy on front pages.
“Australian authorities have not been satisfied with only extending their black hands to domestic media, and have blatantly raided the residences of Chinese journalists in Australia, regardless of the basic norms of international relations and China-Australia relations, analysts said.
“Analysts said what Australia did was not just driven by Australia’s traditional ideological bias, but also showed that it’s a follower of ‘Uncle Sam’”, the Global Times said.
It also accused Australia of having “hyped” the Cheng case.
The recent police interrogations of six Al Jazeera journalists in Malaysia – five of whom are Australian – was not about shaping international reportage or a diplomatic rift.
Rather, it was part of a troubling pattern of crackdowns on the media and freedom of speech in the country, driven by the domestic concerns of an insecure government highly sensitive to criticism.
While the previous government led by former Prime Minister Mahathir Mohamad was by no means consistent or perfect, Malaysia was hailed just last year as an example of a country improving on press freedom.
This started to change in March, however, as Muhyiddin Yassin’s new government came to power. Tolerance for criticism and dissent has since been in short supply.
Al Jazeera’s documentary on the plight of migrant workers during COVID-19.
Pattern of repression
The Al Jazeera journalists have been accused of sedition and defamation over a documentary about the government’s treatment of migrant workers during the COVID-19 pandemic. Malaysian officials and national television claim the documentary was inaccurate, misleading and unfair.
But these journalists are hardly the only ones to be targeted by the new government.
Steven Gan, chief editor of the trusted online news portal Malaysiakini, is facing contempt of court charges and could be sent to jail over reader comments briefly published on the news site that were apparently critical of the judiciary. Gan’s lawyer warned the case could have a “chilling effect”.
Steven Gan arriving in court this week. AHMAD YUSNI/EPA
South China Morning Post journalist Tashny Sukamaran has been investigated for reporting on police raids of migrant workers and refugees.
Another journalist, Boo Su-Lyn, is being investigated for publishing the findings of an inquiry into a fire at a hospital in 2016 that left six dead.
Opposition politicians have also been questioned by police for tweets and comments they made in the media prior to the new government taking power.
Whistle-blowers are included in this, too. For example, the government this week cancelled the work permit of the migrant worker who was featured in the Al Jazeera documentary.
Why the recent crackdown?
Malaysia’s current coalition government – Perikatan Nasional – was controversially formed earlier this year. The alliance came to power via backdoor politicking and support from the Malaysian king as Mahathir’s dysfunctional coalition imploded.
The new government coalition includes the United Malays National Organisation (UMNO), the party voted out of power in 2018 following a massive corruption scandal. This was the first time Malaysia had changed government in its 60-year history.
Malaysia has also become known for its “cybertroopers” – social media commentators similar to “trolls” – who drive heated nationalistic and race-related agendas, and target government critics.
After the Al Jazeera documentary, these cyber-troopers provided fervent support for the government’s actions, arguing it had every right to round up migrants and evict them if it sees fit. Al Jazeera said its journalists were also targeted by cyber-troopers, saying they
faced abuse online, including death threats and disclosure of their personal details over social media.
Shaky government looking to firm up support
There’s another reason for the return of media crackdowns and online-driven activity beyond just the government’s desire to control the media.
It is also tactical as it allows government ministers to respond with firm statements asking security forces to intervene – enabling them to look strong, coherent and nationalistic.
Muhyiddin’s coalition is on shaky ground. It holds a slim majority in parliament and internal party factions have come to dominate political debate, with “party-hopping” becoming increasingly common. Malaysiakini even has a rolling news page regularly updated to track politicians’ changing alliances.
Malaysia’s parliament also finally resumed this week after a long and unstable hiatus, and was described as a “circus”. Politicians shouted over one another, with some trading racist and sexist remarks.
In this environment, politicians who don’t respond forcefully enough in the “culture wars” over documentaries and controversial artwork on book covers, or conform with the online mob on immigration, risk looking weak.
A snap election won’t necessarily help Muyhiddin strengthen his position, as parties within the coalition can become rivals during a campaign for certain seats.
But no matter who rules Malaysia in the coming months, the result will likely be a government that is fragile, insecure and worried about its legitimacy. For Malaysians, this is their “new normal”.
The risk for journalists in this “new normal” is further repression and harassment of independent media. As we have seen elsewhere in Southeast Asia, as well as in Australia, the state seems increasingly willing to use legal and regulatory pressure to make sure journalists and whistle-blowers are afraid to speak up.
During the 2019 election, a news story about the Labor Party supporting a “death tax” – which turned out to be fake – gained traction on social media.
Now, Labor is urging a post-election committee to rule on whether digital platforms like Facebook are harming Australian democracy by allowing the spread of fake news.
While the joint standing committee on electoral matters (JSCEM) will not report until July next year, our latest research finds that politicians are key culprits turning the term “fake news” into a weapon.
Following the election of Donald Trump as president of the United States, we investigated if Australian politicians were using the terms “fake news”, “alternative facts” and “post-truth”, as popularised by Trump, to discredit opponents.
With colleagues Scott Wright, William Lukamto and Andrew Gibbons, we investigated if elite political use of this language had spread to Australia. For six months after Trump’s victory, we searched media reports, Australian parliamentary proceedings (Hansard), and politicians’ websites, press releases, Facebook and Twitter communications.
We discovered a US contagion effect. Australian politicians had “weaponised” fake news language to attack their opponents, much in the way that Trump had when he first accused a CNN reporter of being “fake news”.
President-elect Donald Trump refused to take a question from CNN reporter Jim Acosta, calling him fake news in January 2017.
Significantly, these phrases were largely absent in Australian media and parliamentary archives before Trump’s venture into politics.
Our key findings were:
Conservative politicians are the most likely users of “fake news” language. This finding is consistent with international studies.
Political users were either fringe politicians who use the term to attract more media coverage, or powerful politicians who exploit the language to discredit the media first, and political opponents second.
The discourse of fake news peaks during parliamentary sitting times. However, often journalists introduce it at “doorstops” and press conferences, allowing politicians a free kick to attack them.
ABC journalists were the most likely targets of the offending label.
Concerningly, when the media were accused of being fake news, they report it but seldom contest this negative framing of themselves, giving people no reason to doubt its usage.
Here is one example of how journalists introduce the term, only to have it used against them.
Journalist: Today, we have seen a press conference by President Trump where he has discussed at length this issue as fake news. Prime Minister Turnbull do you believe there is such a thing as fake news?
Prime minister: A very great politician, Winston Churchill, once said that politicians complaining about the newspapers, is like a sailor complaining about the sea — there’s not much point. That is the media we live with.
This kind of sequence suggests journalists play a role in driving and reinforcing fake news discourse to the likely detriment of trust in media.
One Nation’s Malcolm Roberts provides the most extreme example of the weaponisation of fake news discourse against mainstream media:
Turns out the ABC, in-between spewing fake news about our party, ruined ANZAC day for diggers… . The ABC are a clear and present threat to democracy.
Roberts was not alone. Politicians from three conservative parties claimed the ABC produced fake news to satisfy so-called leftist agendas.
What we discovered is a dangerous trend: social media users copy the way in which their politicians turn “fake news” against media and spread it on the digital platforms.
Despite this, our findings, published in the International Journal of Communication, offer hope as well as lessons to protect Australian democracy from disinformation.
First, our study of politicians of the 45th Parliament in 2016 shows it was a small, but noisy minority that use fake news language (see table below). This suggests there is still time for our parliamentarians to reverse this negative communication behaviour and serve as public role models. Indeed, two Labor politicians, Bill Shorten and Stephen Jones, led by example in 2017 and rejected the framing of fake news language when asked about it by journalists.
figure 1: Total number of instances of fake news discourse use between 8 November 2016 to 8 May 2017 by politician. N = 22 MPs; N =152 events. *MPs who use fake news discourse to refute it rather than allege it. Authors
Second, we argue the media’s failure to refute fake news accusations has adverse consequences for public debate and trust in media. We recommend journalists rethink how they respond when politicians accuse them of being fake news or of spreading dis- and misinformation when its usage is untrue.
Third, academics such as Harvard’s Claire Wardle argue that to address the broader problem of information disorders on the web, we all should shun the term “fake news”. She says the phrase:
is being used globally by politicians to describe information that they don’t like, and increasingly, that’s working.
On the death tax fake news during the 2019 election, Carson’s research for a forthcoming book chapter found the spread of this false information was initiated by right-wing fringe politicians and political groups, beginning with One Nation’s Malcolm Roberts and Pauline Hanson.
One Nation misappropriated a real news story discussing inheritance tax from Channel Seven’s Sunrise program, which it then used against Labor on social media. Among the key perpetrators to give attention to this false story were the Nationals’ George Christensen and Matt Canavan. As with the findings in our study, social media users parroted this message, further spreading the false information.
While Labor is urging the JSCEM to admonish the digital platforms for allowing the false information about the “death tax” to spread, it might do well to reflect that the same digital platforms along with paid television ads enabled the campaigning success of its mischievous “Mediscare” campaign in 2016.
In a separate study, Carson with colleagues Shaun Ratcliff and Aaron Martin, found this negative campaign, while not responsible for an electoral win, did reverse a slump in Labor’s support to narrow its electoral defeat.
Perhaps the JSCEM should also consider the various ways in which our politicians employ “fake news” to the detriment of our democracy.
In light of the ministerial direction issued to the Australian Federal Police by the Home Affairs Minister Peter Dutton on August 9, it would be a spectacular contradiction in policy if the Australian Federal Police’s current pursuit of journalists were to end in prosecutions.
I expect the AFP to take into account the importance of a free and open press in Australia’s democratic society and to consider broader public interest implications before undertaking investigative action involving a professional journalist or news media organisation in relation to unauthorised disclosure of material made or obtained by a current or former Commonwealth officer.
So much for the uncompromising stance of Dutton and the then acting commissioner of the AFP, Neil Gaughan, that the law was the law, and if journalists broke it they could expect to be prosecuted like anyone else.
The political sensitivity of this climb-down may be gauged from the fact the direction was issued at 4pm on a Friday.
A combination of early deadlines for the Saturday papers, the incapacity of television to pull together a comprehensive story in time for the evening bulletins, and the dead air of the weekend make late Friday the preferred time of the week to drop bad or embarrassing news.
Dutton’s announcement was bereft of explanation. However, events since the AFP raids on the home of a News Corp journalist, Annika Smethurst, and on the ABC headquarters on June 5 and 6 respectively give a hint of the likely reason.
First, there was the international condemnation across the Western world of the repressive nature of the police raids, expressed in a tone of disbelief that this could be happening in a mature democracy.
Then there was the unified response from the heads of Australia’s three main news organisations, the ABC, News Corporation and Nine. Their message, delivered in a nationally televised broadcast from the National Press Club on June 26, was that a government obsessed with secrecy had now gone so far as to criminalise journalism.
There was also the statement by the Federal Attorney-General, Christian Porter, that he was “seriously disinclined” to prosecute journalists for doing journalism. His consent is needed for any such prosecution.
Faced with international condemnation, pressure from the media and the potential for a major row in Cabinet between Dutton and Porter, the government then tried to take the sting out of the situation by setting up an inquiry into press freedom.
Bizarrely, this is being conducted by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), the very body that has waved through most of these repressive laws in the first place.
The inquiry has generated a body of strongly worded submissions arguing for the balance between press freedom and government secrecy to be struck in a way that is more consistent with democratic principles.
It begins its public hearings this week.
So Dutton’s ministerial direction may be seen as having two objectives: heading off a potentially damaging split in cabinet, and accomplishing a preemptive buckle before the parliamentary inquiry calls him and outgoing AFP Commissioner Andrew Colvin, to give an account of themselves.
Of course, as far as anyone knows, the AFP investigations are still on foot. Already officers have removed thousands of records from the ABC, accumulated travel data concerning two ABC journalists and requested their fingerprints, as well as turning Annika Smethurst’s home upside-down.
So the government’s intimidatory tactics have had a good run already, even if prosecutions do not follow.
There is nothing to stop the police from completing these investigations and providing a brief of evidence for Porter. However, given his stated position, allied with the new political dynamics created by the reaction to the raids and Dutton’s directive, it seems unlikely prosecutions will follow.
While the ministerial direction represents a genuflection in the direction of press freedom, it provides nothing by way of protection for whistleblowers.
The direction says it
does not constrain investigation by the AFP of unauthorised disclosure of material made or obtained by a current or former Commonwealth officer.
So it seems the pursuit of whistleblowers – the people who provide journalists with leaked information – can continue unabated. They still have only a demonstrably useless law – the Public Interest Disclosure Act 2013 – offering a fig leaf of protection.
The present prosecutions of Richard Boyle (Tax Office) and David McBride (Defence) attest to this.
The last paragraph of Dutton’s directive deals with the process by which government departments or agencies refer leaks to the AFP, and the AFP then assesses for investigative possibilities.
This entire reference and assessment process has been shot through with politics, either at the departmental end or the police end, or both.
That is why the ABC and Smethurst leaks – neither of which had much to do with national security but were acutely embarrassing to the government – were subject to police action.
By contrast, a leak to The Australian about the alleged security effects of the medevac legislation, which the head of ASIO Duncan Lewis publicly complained was a real threat to national security, was not subject to police action because it played into the hands of the government’s scare campaign about people-smuggling.
Dutton’s direction says:
I expect the AFP to strengthen its guidance and processes about the types and level of information required from a Government department or agency when they are referring to an unauthorised disclosure. Referring departments or agencies will need to provide a harm statement indicating the extent to which the disclosure is expected to significantly compromise Australia’s national security.
If the direction is to be taken as meaning only leaks significantly compromising national security are to be referred to the police, then there may be a larger safe space within which journalists can operate.
The government has given a new direction to the Australian Federal Police to prevent repeats of the recent raids on the media when leaks are being investigated.
The number of investigations will also be cut back, because departments referring leaks of official material to the police will have to outline the harm the disclosure poses to national security.
The changes, announced by Home Affairs Minister Peter Dutton late on Friday, follow a backlash against the government after the Australian Federal Police raided News Corp journalist Annika Smethurst and the ABC over separate leaks.
The direction applies to both current and prospective investigations, so would likely mean the police will drop off their pursuit of the media in these instances, although the ultimate decision rests with the AFP.
Smethurst’s story revealed confidential correspondence about a proposed change in the remit of the Australian Signals Directorate. The ABC reported confidential documents relating to the behaviour of Australian special forces in Afghanistan.
After the raids the AFP refused to rule out prosecuting the journalists. The media organisations launched court action challenging the validity and use of the search warrants.
Dutton said he had issued a “ministerial direction” to the AFP Commissioner.
This set out the government’s “expectations” for the police when a journalist or media organisation had a leak from a serving or former Commonwealth official.
Dutton said the directive did not constrain investigation by the AFP of an unauthorised disclosure. “A key function of the AFP is the enforcement of the criminal law, without exception,” he said.
But he said he expected the AFP “to take into account the importance of a free and open press in Australia’s democratic society and to consider broader public interest implications before undertaking investigative action involving a professional journalist or news media organisation” in relation to a leak.
“Where consistent with operational imperatives, I expect the AFP to exhaust alternative investigative actions prior to considering whether involving a professional journalist or news media organisation is necessary.”
Dutton said he expected the police to continue to seek voluntary assistance from the media.
He has also told the AFP “to strengthen its guidance and processes about the types and level of information required” from departments and agencies when referring leaks.
Departments “will need to provide a harm statement indicating the extent to which the disclosure is expected to significantly compromise Australia’s national security”.
The upshot is that rather than departments routinely referring leaks to the police, disclosures that do not carry national security implications will not be sent.
Sources pointed out this would not stop a department using its own internal processes to find out who had leaked and taking disciplinary action against them.
The opposition declared the changes just “window dressing”.
Shadow minister for Home Affairs Kristina Keneally said Dutton had announced what he “expects” of the police when the media and the public had demanded guarantees from the government.
She pointed out the announcement had come just days before the Parliamentary Joint Committee on Intelligence and Security held public hearings into press freedoms.
“This is a cowardly act,” Keneally said. “It’s taken Mr Dutton too long to speak out and there are still many unanswered questions”, she said.
“Can the Morrison government confirm they will not charge or prosecute any Australian journalist – such as those at the ABC – for doing their job and reporting in the public interest?”
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.
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.
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.
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.
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 Turnbull government has announced a crackdown on foreign interference in Australian politics and national security. Proposed laws include a ban on foreign political donations, new criminal offences, and a transparency register for those acting on behalf of foreign governments or organisations.
The proposed criminal offences will significantly expand the scope of existing laws against espionage and treason. This will make it easier to prosecute spies and other foreign nationals who seek undue influence over Australian business or politics.
However, the new laws pose risks to whistleblowers and journalists. They suggest the concept of “national security” is continually expanding.
The Criminal Code currently sets out an offence of espionage that is punishable by 25 years’ imprisonment.
The main offence applies where someone communicates or makes available information that concerns Australia’s security or defence. The person must intend to prejudice Australia’s security or defence, or advantage another country’s security or defence. Under the proposed changes, this offence will attract a maximum penalty of life imprisonment.
Where a person recklessly endangers Australia’s security or defence, this will be punishable by the current penalty.
The new espionage offences will apply to possessing or receiving information, in addition to communicating it. They will protect a broader range of information, including unclassified material.
Other new offences, punishable by 15 years’ imprisonment, will target preparation for espionage and the theft of trade secrets.
Foreign interference
Proposed offences for foreign interference will target conduct not ordinarily considered to be espionage or treason.
Currently, the federal offence of treason describes very rare and serious conduct, such as assassinating or capturing the Queen or prime minister.
These new offences will target covert, deceptive or undisclosed conduct that is directed, funded, supervised or undertaken on behalf of a foreign interest. The penalties will range between ten and 20 years’ imprisonment.
To constitute foreign interference, the conduct must be intended to:
serve the intelligence purposes of a foreign actor
harm Australia’s national security
influence the exercise or performance of a democratic or political right, or
The changes will make it easier to prosecute foreign nationals who intentionally interfere with Australia’s business, political or foreign policy interests.
Where such influence cannot strictly be described as impacting on security or defence, successful prosecution under the existing espionage or treason offences is very difficult.
The government’s other justifications are much weaker. The current espionage offences already extend beyond the communication of information to making, obtaining or copying sensitive records. The Crimes Act includes offences that are triggered when an Australian public official discloses official secrets or other information obtained in the course of their employment.
What are the risks?
The proposed offences will target some conduct that should clearly be a serious criminal offence, such as intentionally supporting a foreign intelligence agency.
However, the proposed laws go well beyond such clear cases to target a broad and vague range of conduct affecting Australian interests. This includes possessing unclassified information and any deceptive or undisclosed conduct that influences government processes.
Most importantly, the proposed changes pose risks to whistleblowers and Australian media organisations. These risks were compounded in 2014 by changes to national security legislation in response to the threat of foreign fighters.
A journalist could face serious penalties under the proposed espionage offences for receiving information leaked by a government official or intelligence whistleblower, before they even decide to publish that information.
It seems the information need not even be classified for the penalties to apply, provided making the information available would benefit a foreign country or organisation.
The government needs to ensure that journalists publishing sensitive information in the public interest will not face criminal prosecution for espionage or other federal criminal offences. This should be done by drafting legal protections for journalists who act in a professional capacity in the public interest.
The proposed laws should be viewed not only as a response to increasing Chinese influence in Australia, but also as symptomatic of a post-Snowden crackdown, in which all potentially embarrassing information about government is closely protected.
Similar debates about expanded espionage offences and press freedom have already taken place in the UK. These debates confirm that “national security” is no longer simply about physical threats like terrorism or traditional forms of spying.
Increasingly, the language of national security is invoked to protect a government’s broader interests – political, business and economic.
Keiran Hardy, Lecturer, School of Criminology and Criminal Justice and Member, Griffith Criminology Institute, Griffith University
The link below is to a very observant article concerning certain newspaper journalists and others of the same ilk, in relation to the 2014 budget handed down by the current Australian government. It is a great article that sums up the situation brilliantly.
Two key witnesses’ testimonies connect suspects to higher-level ‘masterminds.’
ISTANBUL, October 21 (CDN) — A court in southeast Turkey on Friday (Oct. 15) ordered the arrest of a suspected “middleman” linking the murder of three Christian men to alleged high-level masterminds.
The arrest order came after the testimonies of a former prison inmate and an incarcerated ex-gendarmerie intelligence worker at Friday’s hearing. Journalist Varol Bulent Aral – one of the suspected “middlemen” who allegedly incited five young men to stab to death Turkish Christians Necati Aydin and Ugur Yuksel and German Christian Tilmann Geske at the Zirve Publishing Co. in Malatya – was re-arrested at the hearing.
The three Christians were bound and tortured before they were murdered on April 18, 2007, at the Christian publishing house, where they worked. Suspects Salih Guler, Cuma Ozdemir, Hamit Ceker, Abuzer Yildirim and alleged ring-leader Emre Gunaydin were caught trying to escape from the scene of the crime.
Attorneys said the last hearing of the Malatya murders was productive in tracing links between the five murderers and political masterminds whom prosecution lawyers claim are behind the slayings. A key witness, Orhan Kartal, was instrumental in proving that Aral was behind the murders, lawyers said.
“Not only this witness, but Emre also accused Aral before and then changed his statement,” said one of the prosecuting lawyers, Orhan Kemal Cengiz. “Before he retracted his statement, he gave details that couldn’t have been fabricated. So from the beginning we saw Aral was involved but couldn’t prove it.”
Kartal spent two months in prison with Aral in Adiyaman in 2008, where they were both held for crimes not related to the Zirve murders. Kartal said that while in prison together Aral detailed how he had planned the attack on the Zirve publishing house by psychologically preparing the five young murderers for the gruesome act. According to Kartal, Aral said he gave the young men the weapons they used to kill the three Christians.
In Kartal’s account, Aral also claimed that there was a higher figure behind him, retired Gen. Veli Kucuk. This year Aral completed his previous prison sentence. He is now again in prison as a key suspect in the Malatya murders.
In a previous statement, Aral had complained that retired Gen. Kucuk had threatened him about testifying. Gen. Kucuk has been arrested in connection with Ergenekon, a loose collection of ultra-nationalist generals, businessmen, mafia and journalists who planned to destabilize the government. Evidence in Malatya hearings over the past three years suggests that the murders were instigated by Ergenekon.
Aral has also been implicated in the Ergenekon case, the hearings of which are underway.
Prosecutors believe the Malatya murders are directly linked with a military operation called the Cage Plan within the scope of Ergenekon activities. A document entitled “Cage Plan,” found on a retired general’s computer, described assassinations that targeted the country’s small Christian communities. The document referred to the Malatya murders as a “successful operation.”
A second witness, Erhan Ozen, also in prison for other offenses, worked for the clandestine Gendarmerie Intelligence Organization (JITEM). He said that as early as 2004, JITEM personnel were planning the Malatya murders and the assassination of Armenian editor Hrant Dink.
Ozen said that after a meeting, some co-workers talked about how they were organizing an operation against the three Christians in Malatya in an effort to portray the state as ineffectual. He also testified that the rector of the local university and JITEM were monitoring the activities of the three Christian men.
“He was convincing because he gave many details that were coherent and that confirm each other, so his testimony seems to me authentic,” attorney Cengiz said. “But of course, we will see.”
In April the Malatya court added the Cage Plan indictment to its case file.
Prosecuting lawyer Erdogan Dogan told Compass that this is clear evidence linking the Malatya murders to the Cage Plan. For almost a year, prosecution lawyers have tried to make the case that the two court cases should be merged.
“We had progress in the case,” Dogan said of the two testimonies on Friday. “They might decide to join the two cases in the next court hearing.”
Judges had found the phone numbers of ultranationalist lawyer Kemal Kerincsiz and Sevgi Erenerol, spokesperson for the Turkish Orthodox Church – a Turkish nationalist denomination –in Aral’s personal phone book. Both figures are accused of playing leading roles in Ergenekon and spearheaded prosecution of Christians Hakan Tastan and Turan Topal for speaking to people about their faith.
This week various media released autopsy pictures and images of police videos showing the five suspects as they walk through the blood-stained Zirve office explaining how they committed the crime.
Lawyers said they did not know who leaked these to the press, but they didn’t think the images would affect the case.
“These will, however, show the country how the young men were incited and murdered the men, full of racism and hatred,” said Dogan. “This will be obvious and should be noted. The state needs to urgently address the fact that these youngsters, or anyone, can become so filled with racism and hatred.”
He said that acceptance and tolerance of other people’s thoughts and beliefs is fundamental, and that the state should teach these values to its people.
The next hearing of the Malatya murders case is on Dec. 3.
Tamil Nadu, India, September 30 (CDN) — Police detained evangelist V.K. Williams and seven other Christians after Hindu extremists disrupted their evangelistic meeting on Sept. 29 in Theni, according to the Global Council of Indian Christians. The extremists filed a complaint against the Christians of “forceful conversion” and pressured police to arrest them, and officers took the eight Christians to the station for questioning. At press time, area Christian leaders were trying to free them.
West Bengal – On Sept. 26 in Purulia, Hindu extremists stopped a worship service and dragged Christians out, saying no more prayer or worship should take place in the village. A source in Kolkata reported that the extremists were threatening to kill the Christians if they did not convert to Hinduism. The Christians reported the matter to the Kenda Police Station. Officers summoned both parties to the police station, but the extremists threatened to kill the Christians if they went.
Karnataka – Hindu extremists belonging to the Bharatiya Janata Party and the Bajrang Dal attacked Gnanodya Church at Yellapura, Karwar district, on Sept. 26. The All India Christian Council reported that the assailants broke into a church worship service after having filed a complaint against Pastor Shiva Ram of “forcible conversions.” In the presence of the police, the attackers started to vandalize the church, pulling down calendars and breaking furniture. Church members said their pastor was targeted because of his social service works. Police took the pastor into custody and jailed him.
Karnataka – Karnataka police on Sept. 26 arrested a Pentecostal pastor, Shivanda Siddi, on false charges of “forceful conversions” in Mundgod. The Global Council of Indian Christians (GCIC) reported that at about 11 a.m. five Hindu extremists from the Bajrang Dal stormed the church building while Christians were praying and began arguing with the pastor. They beat him, stripped him of his clothes and took Bibles from those present. The extremists later telephoned police in Yellapur, about three kilometers away (less than two miles), and an inspector arrived and took the pastor, seven women and two young children to the police station. The extremists continued to threaten the Christians in front of police, who watched in silence. With GCIC intervention, police released the women and children without charges, but Pastor Siddi was charged with “defiling a place of worship with intent to insult the religion of any class.” He was put in Uttar Kananda’s Sirsi prison.
Karnataka – On Sept. 19 in Santhemarnalli, police led by Inspector Madhava Swamy threatened a pastor with harm if he did not stop alleged “forceful conversion” activities. The All India Christian Council reported that police threatened Pastor Mhades of Good Shepherd Community Church after Hindu extremists filed the complaint against him. Police barged into his church, questioned him and told him that they would take action against him if he did not stop trying to convert people. Area Christian leaders claimed that there was no case of forceful conversion, and that Christians were only conducting their regular worship services.
Andhra Pradesh – Police on Sept. 17 arrested a Christian convert from Islam, Sheik Magbool, after Muslim extremists filed a complaint against him of uttering derogatory remarks against the prophet of Islam, Muhammad, in Kurnool. A source reported that Maqbool organized a three-day, open air Christian meeting and distributed some tracts that allegedly contained comparisons between the teachings of Jesus Christ and those of Muhammad. The Muslim extremists accused Maqbool of making derogatory remarks against Muhammad, threatened to kill him and filed a police complaint against him. Area Christian leaders maintained that the tracts did not contain any hateful remarks against Muhammad; they asserted that the Muslim extremists reprinted the tracts after adding some lines insulting to Muhammad in order to fabricate a case against the Christians. Maqbool was put in a jail cell, with the Down Court rejecting his petition for bail on Sept. 21.
Chhattisgarh – On Sept. 15 in Raipur, Hindu extremists misrepresenting themselves as journalists barged into a prayer meeting led by Pastor Kamlakarrao Bokada and accused him of “forceful conversion,” verbally abused him and falsely accused him of dishonoring their idols. They ordered the pastor to video-record the prayer meeting, but he refused. The pastor, who visits Christian homes in the Khorpi area, was ordered not to do so again. Police refused to register a complaint by Christians.
Andhra Pradesh – Hindu extremists in Vizianagaram on Sept. 13 attacked a pastor’s wife, injuring her head, and told the church leader to leave the area, according to the All India Christian Council. The attack came after Pastor Y. Caleb Raj of Good Shepherd Community Church requested that youths playing loud music before the idol of Ganesh near his church not disturb the Sept. 12 worship service. As the pastor was speaking to organizers of the Ganesh event, Hindu extremists gathered and some tried to manhandle him. They told him to close down the church and leave the village. When Pastor Raj was out on ministry work the next day, the same group of Hindu extremists came and struck his wife with a wooden club. Pastor Raj filed a police complaint, but no arrests had been made at press time.
Chhattisgarh – Hindu extremists in Raigarh on Sept. 12 beat evangelist Robinson Roat and ordered him to stop all Christian activities. The Global Council of Indian Christians reported that about 25 extremists barged into the worship meeting in Roat’s home. They told him he would face further harm if he left his house. The Christian did not venture out for two days.
Madhya Pradesh – Hindu extremists in Satna on Sept. 12 accused Pastor V.A. Anthony of “forceful conversion” and of carrying out the funeral of a non-Christian in a local Christian cemetery. Based on the complaint of the Hindu extremists, the inspector general of police summoned Pastor Anthony and a high-level inquiry is pending, reported the Global Council of Indian Christians (GCIC). The son of a local church member had died under mysterious circumstances earlier this year, and the pastor and church members had buried him in the Christian cemetery according to the wishes of his parents and other relatives, according to the GCIC.
Uttar Pradesh – Hindu nationalists from the extremist Rashtriya Swayamsevak Sangh on Sept. 5 beat a pastor in Sarva village in Babina, Jhansi district. The Global Council of Indian Christians (GCIC) reported that three Hindu extremists led by Surendra Yadav and armed with wooden clubs barged into the church building after Sunday classes and beat Pastor Anil Masih on his back and legs, kicked him and verbally abused him. The assault went on for about 30 minutes. The next day, Masih’s father informed Babina police. Masih received hospital treatment for a broken left leg. GCIC sources told Compass that after Masih’s discharge from the hospital on Sept. 10, he filed a complaint against the extremists at the Babina police station on Sept. 13. At press time, no arrests had been made.
Karnataka – Police on Sept. 1 stopped a pastors’ meeting in Mysore, claiming that they were being trained to “convert people,” though conversion and persuading to convert is legal in India. The Global Council of Indian Christians (GCIC) reported that the Mysore Pastors Association organized a two-week pastoral training program with about 50 local church leaders and evangelists in attendance. Police arrived and ordered the organizers to vacate the premises by the next day. Even though such trainings are legally permitted in India, the Christians called off the meeting.
Rajasthan – Hindu extremists attacked two Christian workers, damaged their vehicles and seized evangelistic literature from them on Aug. 26 in Udaipur. The All India Christian Council reported that evangelists Charlie John and V.M. George were distributing gospel tracts when a group of Hindu extremists suddenly came and began objecting. The extremists blocked their vehicle and beat the two Christians, leaving them with serious injuries. Police came to their rescue and suggested they file a complaint against the extremists, but the Christians said they chose to forgive their attackers.
Increasingly, the language of national security is invoked to protect a government’s broader interests – political, business and economic.
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