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.
Calls for new counter-terrorism powers have become commonplace in Australia, to the point where we now have more than 80 laws directed at the threat of terrorism.
Any call for additional powers should be met with careful scrutiny, particularly when the rights of children are at stake.
Repealing controversial detention powers
One of the biggest changes in the bill is that it would repeal ASIO’s power to detain people for questioning. Currently, ASIO has the power to seek a questioning and detention warrant (QDW) that allows people to be detained for up to one week. Detention can be approved if a person is likely to fail to appear for questioning, alert someone involved in terrorism, or tamper with evidence.
During that period, a person can be questioned in eight-hour blocks up to a maximum of 24 hours. This is purely an intelligence-gathering exercise, and is not related to any investigation for a criminal offence. The questioning can be approved if it would
substantially assist the collection of intelligence that is important in relation to a terrorism offence
The questioning is coercive, in that a person faces five years in prison for failing to answer any of ASIO’s questions. The powers are also highly secretive: it’s five years in prison for anyone who reveals anything about a warrant.
These powers are some of Australia’s most controversial anti-terror laws, as no democratic country has granted its domestic intelligence agency the same power to detain people for questioning.
At the same time, the bill will expand ASIO’s power to seek questioning warrants (QWs). These trigger all the same questioning processes and criminal offences as QDWs, they just don’t allow ASIO to detain the person outside the questioning period.
If the bill passes, QWs will be split into “adult questioning warrants” and “minor questioning warrants”. Minor questioning warrants will be available for children as young as 14 who are “likely to engage in” politically motivated violence.
Under the proposed laws, a young person can only be questioned in blocks of two hours or less, and a lawyer must be present during all questioning.
However, restrictions currently placed on lawyers will be retained. Lawyers, whether acting for young people or adults, are not allowed to intervene in questioning, except to clarify an ambiguous question. They can even be kicked out of the room, and a new lawyer appointed, if they “unduly” disrupt the questioning.
These restrictions will significantly undermine the ability of lawyers to protect children from any forceful or inappropriate questioning by ASIO officers.
Given this record, it is difficult to see how QWs for 14-year-olds are suddenly needed to prevent acts of terrorism.
Indeed, in a recent PJCIS inquiry, ASIO explained their lack of use by saying the powers were difficult to approve on a short timeframe. This made them not very useful for the kinds of low-tech attacks seen in recent years, such as stabbings and shootings, which require little advance planning.
If the new powers are passed in the bill, they should at least be sunsetted to expire after three years, rather than the proposed ten. Without this amendment, more extraordinary counter-terrorism powers will be on Australia’s statute books for the foreseeable future.
Prime Minister Scott Morrison has announced that anyone entering Australia must enter a 14-day self-quarantine period.
Some questions have been raised as to how this new mandate would be administered and enforced. The answer to these questions relies on a somewhat complex patchwork of state and federal laws and whether relevant federal and state government emergency powers have been activated.
At this time, the enforceability of the 14-day self-isolation rule is a matter for state and territory governments – although this might change.
What Commonwealth law says
The main federal law in this area is the Biosecurity Act 2015. As others have written, this law aims to manage biosecurity threats to human, animal and plant health, which include viruses such as COVID-19.
There are two types of powers under the act that could apply here:
The first is the “human biosecurity control orders” under chapter 2, part 3 of the act. Individuals who have symptoms of, or who have been exposed to, a disease or who have failed to follow any mandatory procedures on arrival into Australia could be placed on a control order.
A control order could, among other things, direct a person to stay home, or remain at a particular place. It is decided on an individual-by-individual basis following an assessment of whether the preconditions were met. As such, it cannot be placed on all arrivals.
The second option under the law is the declaration of a “human biosecurity emergency”.
If such an emergency was declared, Health Minister Greg Hunt would have a range of options at his disposal to control the spread of disease. These include sweeping powers to direct people’s movements and require the closure of premises. People could be imprisoned for up to five years and/or fined up to approximately A$60,000 for failure to comply.
However, until such an emergency is declared, it will be up to the states and territories to implement the 14-day self-isolation rule under their own laws.
What state and territory laws say
There are many similarities in the ways in which state and territory authorities can order and enforce isolation measures. These come from public health laws and often depend on the declaration of a state of emergency.
In NSW, the government already has broad powers under the Public Health Act 2010 to take actions and give directions to deal with risks to health.
These powers would extend to enforcing self-isolation, provided the relevant areas of NSW were declared to be “public health risk areas”. A person who did not comply with such a direction would be liable for up to 100 penalty units (approximately $11,000), or imprisonment for up to six months.
The NSW government could, if necessary, declare an emergency under the State Emergency and Rescue Management Act, which would more clearly set out the powers that can be used, such as using force to enter premises.
While Premier Gladys Berejiklian also said it would be difficult to monitor every person to ensure compliance, the law will permit the 14-day self-isolation mandate to be enforced. She urged people to do the
right thing by the community, by their own family and by their circle.
The other states and territories have similar powers under states of emergency. All require a declaration of an emergency to activate these powers. The laws permit governments to order people to isolate themselves and detain or fine those who don’t comply.
Punishments vary from 50 penalty units in Tasmania and the ACT (approximately $8,000) to 400 units (approximately $60,000) in the Northern Territory.
States and territories have also issued bans on mass gatherings of more then 500 people, with hefty fines for corporations that don’t comply. There are exceptions for a number of institutions, such as schools and universities, workplaces, public transport, markets and courts.
Limits on powers to isolate and detain
As this is the first time these laws have been used in this context in Australia, how they will implemented and enforced is not yet clear.
Importantly, there are safeguards in these laws to ensure that coercive powers, such as the power to detain people, are used only when necessary.
Governments must regularly review the need for emergency powers. For example, in the ACT, a state of emergency lasts for up to five days, then must be reviewed every two days after that. Queensland recently amended its law to permit a state of emergency to be extended for up to 90 days.
There are also a variety of controls on issuing orders and declarations in relation to individuals.
For instance, under Tasmanian law, the state director of health must review whether it is necessary for a person to be subject to an isolation or quarantine order every seven days. Under the Victorian act, authorities must review a decision to detain a person every 24 hours.
In some instances, state laws also give people the right to seek review in court.
When it comes to enforcement, the states have said they would use regular police checks to make sure people are complying with isolation orders.
This is part of a new series looking at the national security challenges facing Australia, how our leaders are responding to them through legislation and how this is impacting society. Read other stories in the series here.
In late September, Home Affairs Minister Peter Dutton introduced a new bill that would give him stronger powers to strip the Australian citizenship of dual nationals convicted of terror-related offences or who in engage in related activities.
In response to the prospect of foreign fighters returning from conflicts overseas, the bill proposes extending the current citizenship revocation law to any dual national who is convicted of a terrorism offence carrying at least three years imprisonment (compared to the current six).
It would also be back-dated to account for any terrorism convictions or conduct from May 2003 onwards (compared to the current cut-off date of December 2015).
To protect the rights of dual nationals, the bill proposes changing the process for revoking citizenship. Instead of it automatically ceasing when people engage in terror-related conduct, the minister would have the sole power to decide if they should be stripped of their citizenship.
This procedural change is unusual because moves to repeal or wind back
anti-terrorism laws have been few and far between.
Unfortunately, however, in all other respects, the new citizenship bill fits squarely within the pattern of overzealous Australian anti-terror law-making over the past 18 years.
Since the September 11, 2001, terrorist attacks in the United States, the Australian parliament has responded to the threat of terrorism here and overseas by enacting dozens of new laws or amending existing laws.
In 2011, University of Toronto Professor Kent Roach famously described this response in Australia as one of “hyper-legislation”.
Another expert, UNSW Professor George Williams calculated that between the September 11 terrorist attacks and the defeat of the Howard government in November 2007, a new anti-terror law was enacted on average every 6.7 weeks.
In the five years since then, 19 more anti-terrorism laws have been passed. That brings the total number of substantive anti-terrorism laws enacted by parliament to 82 since the Sept. 11 attacks, with a further six bills either currently before parliament or about to be introduced.
This is a staggering number of laws, and far exceeds the volume in the United Kingdom, Canada and even the United States in response to Sept 11.
Draconian and unworkable laws
It is not only the sheer number of laws, but also their scope, which makes Australia stand out among Western democracies.
However, as the years have gone by, increasingly draconian, and often unworkable, legislation has spiralled out beyond this definition. For instance, the mere act of travel to certain areas, such as Mosul in Iraq, has been criminalised, as well as advocating terrorism.
Instead of working with companies like Facebook and Twitter in the aftermath of the Christchurch terrorist attacks, the government imposed impractical obligations on them to scrutinise the online activities of their customers (with further laws threatened in the event of non-compliance).
In addition to the stripping of the citizenship of dual nationals, another bill would prevent anyone from returning home from overseas conflicts for a considerable period of time under a Temporary Exclusion Order, even Australians who don’t hold another passport.
Another bill before parliament would require people who have previously been charged with a terrorism offence (regardless of whether they were ultimately acquitted) to prove extraordinary circumstances before being granted bail for a subsequent offence.
This demonstrates just how far lawmakers have strayed from the fundamental human rights and principles of criminal justice.
What anti-terror laws are intended to do
In the immediate aftermath of the September 11 attacks, Australian lawmakers might have been excused any overreaction on the grounds the country didn’t have much historical experience with terrorism or in legislating in response to this threat.
At the time, there were no specific anti-terrorism laws at the federal level in Australia. This was undoubtedly a significant oversight which needed to be remedied.
Even today, more than 18 years on and with over 80 laws in place, it’s somewhat understandable lawmakers react to terrorist attacks by seeking to take swift action.
One of the (few) downsides of a democratic political system is that parliamentarians are hit with the full force of public hysteria about actual and perceived terrorist threats. The most obvious way for the parliament to address these fears is through the enactment of laws.
As Roger Wilkins, a former secretary of the Attorney-General’s department, said in support of proposals to strengthen the control orders laws in the aftermath of the November 2015 Paris terrorist attacks:
In a modern, liberal democracy, that’s about the only thing you can do.
Despite frequent claims to the contrary, this is not just a case of political opportunism on the part of the governing party. The steps taken by lawmakers are crucial in re-establishing the community’s sense of security.
We need to acknowledge, above all, that the buck stops with our elected representatives to protect the lives of the Australian people. They bear both the personal and professional responsibility if a terrorist act occurs which could have been prevented.
It is this, as much as anything else, that explains the rapid and bipartisan passage of so many laws through the parliament.
Terrorism can’t be defeated through laws alone
Having said all this, it’s unfortunate successive Australian governments on both sides seem to have learned little over the course of the last 18 years.
Statements made in the aftermath of every terrorist attack, and, most recently in responding to concerns about foreign terrorist fighters, have identified the ultimate goal as being to “defy” and “defeat” terrorism.
While statements such as this are clearly rhetorical, what underpins them is a failure to recognise the permanence of terrorism.
Terrorism in one form or another has always existed, and will always continue to exist. Neither legislation nor anything else will be able to eliminate this threat.
The idea of managing the threat of terrorism, in the sense that some degree of terrorism is acceptable or at least to be expected, might seem politically unpalatable. However, open acceptance of the permanence of terrorism means lawmakers will no longer be chasing – and the public no longer demanding – the achievement of an impossible goal.
It will also, in turn, facilitate a more proportionate response to the challenges posed by the foreign fighters phenomenon and the threat of terrorism more generally.
A better way forward
In a quest to eliminate terrorism, laws have been enacted that make ever-increasing intrusions into people’s lives and curtail human rights for diminishing returns in terms of security.
Some have even suggested these laws make us less safe. In its submission to the Parliamentary Joint Committee on Intelligence and Security’s inquiry into the citizenship stripping laws, ASIO said these measures could:
have unintended or unforeseen adverse security outcomes – potentially including reducing one manifestation of the terrorist threat while exacerbating another.
It will never be appropriate or desirable for governments to sit back and take no action in response to the threat of terrorism. But what we need is a sharp change in approach.
Countering violent extremism programs have been used in Australia and other countries as another tool for responding to terrorism threats. Instead of treating such programs as a “backup” option, as they currently are in Australia, these should be brought to the fore.
The critical lesson of the past 18 years is that we must think creatively about how to combat the threat of terrorism, rather than continually reworking existing – and often demonstrably unsuccessful – strategies.
The government almost certainly would have to obtain the support of Tasmanian crossbench senator Jacqui Lambie to amend or repeal the medevac legislation.
Home Affairs minister Peter Dutton on Sunday claimed Labor was reconsidering its position on the legislation, but that was quickly dismissed by his opposite number Kristina Keneally.
The Coalition would need four of the six non-Green crossbench Senate votes, assuming the ALP and Greens opposed.
The government could rely on One Nation, which will have two senators, and Cory Bernardi from the Australian Conservatives.
But that would leave it one vote short. Stirling Griff, one of the two Centre Alliance senators, said Centre Alliance was “100% opposed” to repeal or amendment of the legislation. That position was “non-negotiable”, Griff said.
This would put Lambie, who is returning to the Senate after having to quit in the citizenship crisis, as the swing vote. Her spokeswoman said she was not giving answers on anything yet.
The government said in the election campaign that it would repeal the legislation.
It claimed when the medevac bill was passed – against Coalition opposition during the period of minority government – that it would lead to a flood of transfers from Manus and Nauru, including of people accused of serious crimes. It reopened Christmas Island and said any transferees under the medevac legislation would be sent there.
Dutton said on Sunday just over 30 people had come under the new law, none of whom had been sent to Christmas Island. Asked on the ABC whether they included any criminals or people charged with offences Dutton said he didn’t know. When pressed he said, “we don’t bring anyone to our country where we can’t mitigate the risk”.
Dutton continued to insist the government could be compelled under the legislation to transfer criminals, although the medevac legislation gives the minister power to veto people on security grounds.
The minister claimed Labor was reconsidering its position “and that they would be open to suggestions about how that bill could be repealed or at the very least wound back”.
But Keneally said he had misrepresented Labor’s position; she stressed it supported the legislation.
It was “up to the government to explain if changes are necessary. I have no information that would suggest changes are necessary,” she said.
“If the government believes that the medevac legislation is no longer necessary to ensure that sick people can get the health care they need then the government needs to explain why to the parliament.
“And if the government wants to improve the medevac legislation to ensure that people can more readily get the health care that they need then the government needs to explain that to the parliament.
“The government has said nothing about either of those two aspects of the legislation”.
Dutton said there were now just over 800 people remaining across Nauru and Manus.
He did not think the United States would take the maximum 1,250 people under the deal between Malcolm Turnbull and Barack Obama.
So far 531 had gone to the US and there were about 295 in the pipeline who had approvals but hadn’t gone yet. More than 300 had been rejected by the US.
He hoped all offered a place would take it up. About 95 had either withdrawn from consideration or rejected an offer. “If we can get those 95 across the line, we get closer to zero”.
In a controversial decision, Australia accepted under the US deal two Rwandan men accused of involvement in the murder of tourists on a gorilla-watching expedition in Uganda in 1999. The government says the men have been found by Australian security agencies not to pose a threat.
Pressed on whether these two were the only ones coming here to fulfil Australia’s side of the deal, Dutton said: “We don’t have plans to bring any others from America at this stage.”
Dutton, while saying it was a matter for the department, also indicated the security company Paladin was likely to have its contract for services on Manus rolled over, despite an ongoing investigation by the Australian National Audit Office into the Home Affairs department’s management of the procurement process for the earlier A$423 million contracts.
Keneally said the A$423 million contract had been “given out by the government in a closed process – a closed rushed process […] to an organisation that was registered in a beach shack on Kangaroo Island, that had one member barred from entering PNG, had another accused of fraud”.
The latest protests in Hong Kong on Sunday, which organisers said brought some 2 million people to the streets, represented yet another striking show of “people power” in the semi-autonomous Chinese city.
Chief Executive Carrie Lam’s efforts to bring calm to Hong Kong included an uncharacteristic about-face on her position over the weekend, a rare apology and the indefinite suspension of the proposed changes to the city’s extradition laws, which sparked the initial protest against the government last weekend.
But laden with qualifications and a subtle rebuke of the protesters, Lam’s repositioning of the issue has had limited impact, suggesting that she may have seriously underestimated the anger and determination of her constituency. The protesters are now calling for nothing less than her resignation, making her the “lightening rod” for public anger in the face of growing resentment towards Chinese influence in Hong Kong.
As the people of Hong Kong continue to take to the streets, one wonders whether the real struggle has only just begun.
How the fight over the extradition bill mushroomed
For many, Lam’s controversial extradition bill represented the “thin edge of the wedge” of Chinese control. If passed, the proposed law could have seen local and foreign criminal suspects sent to mainland China to stand trial in a judicial system that is opaque and vastly uncompromising.
But there’s much more at stake for the people, identity and prospects of Hong Kong. For those concerned about China’s rising influence in the city, the legislation represented a dangerous break in the firewall that has preserved civil liberties for the people of Hong Kong within the “one country, two systems” framework.
While its proponents claim the bill has a narrow application, many fear it would enable China’s leadership to target political opponents, entrepreneurs and activists as part of its wider strategy for exercising control over the region. The implications for Hong Kong’s reputation as a vibrant global financial, business and transit hub would be significant.
Of course, the latest demonstrations cannot be viewed in isolation – they are the latest chapter in Hong Kong’s longstanding tradition of public dissent. And there have been some notable successes in the past, including the indefinite suspension of plans to implement a national security law in 2003 and the reversal of a proposed comprehensive national curriculum in 2012.
Yet, as the 2014 Umbrella Movement protests revealed, the mood in Hong Kong appears to be taking on a more sombre tone. Much of this reflects the changing mood within China.
Under President Xi Jinping, civil protests — even those organised in the special autonomous region of Hong Kong — are increasingly fraught. Xi himself set the tone with a particularly hard-line speech during his 2017 visit to the city for Lam’s swearing-in.
Flagging new levels of intolerance for activities that might be interpreted as encouraging Hong Kong independence from China, Xi noted:
Any attempt to endanger China’s sovereignty and security, challenge the power of the central government … or use Hong Kong to carry out infiltration and sabotage activities against the mainland is an act that crosses the red line and is absolutely impermissible.
Despite the efforts of China’s state-run Global Times newspaper to lay blame for the “uncontrolled street politics” on “Western forces” and “malice from afar”, however, Chinese political authorities have remained relatively quiet on the Hong Kong protests this week.
This is unsurprising. Coming just a week after the 30th anniversary of the Tiananmen Square protests, China was never likely to take an openly provocative stance against the protesters.
But it is clear Beijing is keeping a close eye on the situation, pushing back on criticisms from abroad and now possibly wavering in its support for Lam. Ever sensitive to external critiques that relate to questions of sovereignty, the Chinese government may decide to take a harder line should the protests continue to gather momentum.
Lack of foreign pressure
Thus far, the response to the protests has been relatively muted. The European Union has called for the rights of the Hong Kong people to be respected, noting its concern for the “potentially far-reaching consequences” of the extradition bill. UK Prime Minister Theresa May, meanwhile, has called on authorities to ensure the extradition arrangements “are in line with the rights and freedoms” set forth in the joint declaration when the British handed Hong Kong back to China in 1997.
US President Donald Trump has remained ambivalent so far, saying only last week, “I’m sure they’ll be able to work it all out.” But according to his secretary of state, Mike Pompeo, Trump is now expected to raise the issue when he meets Xi at the G20 Summit at the end of the month. This is only significant insofar as it reminds us of Trump’s transactional interest in the region.
As for Australia, Foreign Minister Marise Payne issued a fairly neutral statement in support of the Hong Kong people’s right to protest. It left many, including those in Sydney, Melbourne and elsewhere who protested in support of Hong Kong last week, somewhat underwhelmed.
Beyond the protests, how the current tensions unfold will have serious implications for Australia’s engagement in the region and our ongoing relationship with China. The 2017 Foreign Policy White Paper reinforces the core values underpinning our international engagement, including support for political, economic and religious freedoms, liberal democracy and the rule of law.
How and when we articulate our commitment to these values, and reinforce their place in our region, will be the key test of our diplomacy going forward.
Where do the protests go from here?
Lam’s decision to suspend consideration of the extradition bill offers a necessary moment for pause. But it hasn’t taken the heat out of the protests.
At this stage, Lam hasn’t backed away from her intent to revive the bill at a later stage. It’s also likely the Chinese government will continue to press towards that outcome, though perhaps in a different form and even under different leadership. Much hangs in the balance.
Hong Kong’s protesters appear galvanised by their cause. But whether they can sustain the necessary momentum for the long game — where crossing red lines may come at a cost — is another matter altogether.
A few days ago, Waleed Aly asked a not-so-rhetorical question in The Sydney Morning Herald. He wondered how many Australians were worried about the fact that the Australian Federal Police had spent a good portion of this week raiding the offices and homes of journalists who’ve published stories clearly in the public interest.
His conclusion? Not many. He went on to argue that it is because we have developed a culture of accepting excessive state power, with no real thought about the consequences for civil liberties or the functioning of our democracy.
Sadly, I would have to agree with Aly, but as with so many surveys, the answer you get depends on the question you ask.
What if we asked, “Hands up who feels comfortable with relying on the Facebook posts and Twitter feeds of our politicians and departmental spokespeople for information about what our government is up to? Who thinks that is a good way to run a democracy?” Then, I bet you’d get a very different answer.
I agree that Australian media are hardly trusted by the public, but I am also convinced that most Australians recognise the need for some kind of independent watchdog keeping track of politicians and the government on our behalf. It might be imperfect and messy, but a free press has performed that role well enough to keep us broadly on track for much of our history.
Earlier this week, my colleague and fellow University of Queensland researcher Rebecca Ananian-Welsh laid out the intricate web of national security laws passed in recent years that collectively serve to straight-jacket journalists and threaten legitimate whistle-blowing.
In a number of research projects, we have been looking at both these laws and their impact on reporting, and while we still have a long way to go, the early results suggest something deeply troubling.
While they may have helped shore up national security, the laws have also led to a net loss of transparency and accountability. It has become harder for journalists to reach and protect sources and keep track of wrong-doing by government officials. It has also become harder for them to safely publish in the public interest without risking long years in prison or cripplingly expensive and traumatic court cases.
My organisation, the Alliance for Journalists Freedom, has published a white paper that offers a better way of balancing those two crucial elements of our democracy – national security and press freedom.
The most important of its seven recommendations is a Media Freedom Act. Australia has no legal or constitutional protection for press freedom. It isn’t even formally recognised in law; the High Court has merely inferred that we have a right to “political communication.”
That needs to change. The AJF is proposing a law that would write press freedom into the DNA of our legal system. It would both prevent our legislators from unnecessarily restricting journalists from doing their jobs and give judges a benchmark they can use whenever they are adjudicating cases that deal with media freedom issues.
That alone isn’t enough though. The second recommendation in the white paper calls for changes to the national security laws themselves.
Currently, many of the current laws that Ananian-Welsh laid out in her article include a “public interest” defence for journalists. But as we have seen in this week’s raids, that does nothing to stop the AFP from trawling through journalists’ documents for sources and forcing everyone into court.
Instead, there should be an exemption for journalists and their sources when reporting on matters of public interest.
That isn’t to suggest that journalists should be immune, though. Rather, the onus should be shifted to the authorities to show why the public interest defence should not apply. It is also important that the exemption include whistleblowers.
Beyond national security, there are a host of other laws that have contributed to a wide culture of secrecy at odds with the principles of open government.
Payouts under defamation laws now routinely run to millions, potentially destroying news organisations and chilling further investigative work. Shield laws that allow journalists to protect their sources in court are also inconsistent across states and need to be strengthened.
Suppression orders that judges use to smother reporting of certain court cases are being applied with alarming frequency and urgently need review. And whistleblower legislation needs to be strengthened to encourage and protect anybody speaking out about wrongdoing in government or elsewhere.
While the raids of the past week have been shocking, they have forced us all to think again about the role of the media in a democracy. If it leads to better legislation that both protects national security and media freedom, then some good might have come out of it after all.
Up until Prime Minister Jacinda Ardern’s announcement of a ban on military-style weapons yesterday, New Zealand had a system of licensing firearms holders and used a process of application, vetting, reference checks and attendance at firearms safety lectures.
Knowledge of the Firearms Code was required and tested. A firearms license holder was able to then legally acquire any number of firearms. New Zealand has not set up an arms register since the Arms Act was enacted in 1983.
There is no tally of how many firearms are in New Zealand, and no log of how many firearms any individual may have. There is an estimated 1.3 million firearms legally owned in New Zealand, and nothing beyond speculation about how many illegal weapons have found their way in.
With a certain class of license, military style semi-automatic weapons (in unlimited numbers) could be acquired legally. Some 14,000 of these weapons are thought to be legally owned in New Zealand.
Loop holes in current legislation abound. These make it possible to modify weapons and obtain large magazines, and even to buy armour-piercing bullets. Why, in a peaceful, democratic and open society, does anyone need a military-style automatic weapon and armour piercing ammunition?
Prime Minister Ardern has shown the decisive leadership we should see from a leader who genuinely cares about the people she leads. She has finally grasped the nettle, exploiting the current situation to drive through the changes New Zealand should have made 23 years ago following the Port Arthur massacre. She has outwitted those who might oppose her move, because there is no argument that anybody could muster now that would in any way resonate with the vast majority of New Zealanders.
Ardern has announced the ban on a number of weapons, signalled changes to the firearms licensing regime and the need to keep tabs on the national recreational arsenal. But there is a tough road ahead.
Politicians have an unquestioning faith that legislation is sufficient, but it is largely impotent without adequate resourcing for the enforcement of new rules. With only an estimate to work on, New Zealand Police (the administrators of firearms regulations) will have to identify and locate the owners of these weapons and implement the buy-back and amnesty that will be required.
Many owners will give them up. Their humanity will outdo their desire to have them, but the shocking reality of panic buying of semi-automatics since the Christchurch tragedy signals that clearly there are those who will seek to subvert the government’s intent. Police will have to investigate those who fail to cooperate, safely seize the weapons and prosecute the offenders.
Most firearms license holders in New Zealand do not own military style semi-automatic weapons. Many are rural, recreational hunters or use their weapons on ranges. They look after their weapons responsibly, secure them safely, own them legally and use them at no risk to the general public.
Most who own semi-automatic weapons are no different. We should not demonise a section of society simply because of the horrific, obscene and brutally inhuman actions of one lonely individual who no more represents gun owners than he does any other group of New Zealanders.
Illegal weapon imports
But this is not the issue. The issue is that the privilege of owning a certain class of weapons is not worth the terrible cost of 50 people being gunned down in prayer. New Zealand is already seeing the steady illegal importation of firearms, often tied to the increasing movement of illicit narcotics. Banning semi-automatics will increase the demand for the importation of these weapons illegally, adding extra pressure on law enforcement agencies.
For a ban on military style semi-automatics to have meaning, New Zealand’s long coast line, its airports and sea ports, through which illegal commodities are moving, will need resources that allow fit-for-purpose enforcement powers, people and tactics.
The changes New Zealand will now make will not guarantee it will be free of terrorism in the future. Other countries have much stricter firearms regulations, having taken far stronger measures years ago, but they have still suffered terrorist attacks. Firearms reform is one small step for a country that will need to address a plethora of gaps in its security approach.
New Zealand’s terrorism legislation is inadequate. It was found wanting when police attempted to apply it in 2007 during the “Urewera raids”, but charges could not be laid then. New Zealand’s then Solicitor General David Collins described the Terrorism Suppression Act then as incoherent and unworkable. How New Zealand manages social media needs review, and the traditional minimalist approach to national security will no longer suffice.
New Zealand has faced security crises before during the Russian scare in the 1880s and the second world war in the 1940s. It has often been caught out doing “too little, too late” to be saved only by its distance from any potential threat. The internet has extinguished that distance. It has brought the ills of the rest of the world to us. It is already too late. We must ensure that what we do now, is not too little.
As she foreshadowed in the aftermath of the Christchurch massacre last Friday, New Zealand Prime Minister Jacinda Ardern has just announced a ban in that country on specific military-style firearms. It will soon become an offence to own or possess semi-automatic firearms and shotguns with detachable magazines capable of firing more than five cartridges.
Later this month, the government will consider further changes to the law that will tighten licensing requirements and impose limits on certain types of ammunition. There will be a gun buy-back scheme in place in due course that will provide compensation to those who possess soon-to-be-illegal guns. Preliminary advice suggests that might cost the country between NZ$100 million and NZ$200 million.
Thoughts immediately go to the aftermath of the 1996 Port Arthur tragedy in Australia. Then-Prime Minister John Howard had been elected only six weeks before the Tasmanian horror unfolded. He immediately set in train the gun control measures that no previous government, conservative or progressive, would ever have thought possible.
The government placed a ban on the sale, transfer, possession, manufacture, and importation of all automatic and most semi-automatic rifles and shotguns (and their parts, including magazines). More than 640,000 such weapons were thereupon surrendered and later destroyed at a cost to the taxpayer of around A$250 million.
In Australia today, there continues to be bipartisan political consensus and broad community support for what was titled the National Firearms Agreement (NFA). In 2017, it was reaffirmed by the Council of Australian Governments (COAG).
There has been some criticism that certain aspects of the original agreement have been watered down in some jurisdictions in recent years, but the requirements outlined by the agreement generally remain intact.
Did the Australian gun ban and buy-back scheme make inroads into the rate of firearm-related deaths? Did it prevent mass shootings? Jacinda Ardern appears to be convinced that answers to both questions are in the affirmative. Let’s look at the evidence from the past 23 years in this country to test her assumptions.
It is unequivocal that gun death rates in Australia have been falling consistently since 1996. Some commentators object to the connection between this trend and the NFA, saying the downturn was simply a continuation of a long-term decline in gun violence generally.
But recent research found that, compared with the trend before 1997, there was a more rapid decline in firearm deaths after the implementation of the NFA.
However, this conclusion was quickly challenged by another researcher, who argued these findings were simply a consequence of the rarity of these events, and that the data were thus skewed.
The researchers on the first paper then set out to test the null hypothesis: that is, that the rate of mass shootings would remain unchanged after the introduction of the NFA. They concluded that while a definitive causal connection between this legislation and the 22-year absence of mass firearm homicides was not possible, there was nevertheless evidence that before 1996, approximately three mass shootings took place every four years. Had they continued at that rate, 16 incidents would have been expected by February 2018, but that pattern did not play out.
The evidence from the National Homicide Monitoring Program, collated by the Australian Institute of Criminology, concurs with the evidence provided by these authors. Its data indicate that the share of murders committed with firearms dropped significantly around the time of the buyback scheme. Indeed, the number of homicide incidents involving a firearm decreased by 57% between 1989-90 and 2013-14.
In 1989-90, firearms were used in 24% of homicides. In 2013-14, the figure was 13%.
Incidentally, in the United States, 60% of homicides are committed by firearms. To the extent that correlations are useful, there should be no surprises here. The US gun ownership rate (guns per 100 people) is more than five times the Australian rate.
Reducing access to firearms lowers the risk of gun deaths
The evidence that countries with higher levels of gun ownership have higher gun homicide, gun suicide, and gun injury rates is convincing. Anyone advocating gun ownership as a means of lowering levels of violence and crime is arguing against the weight of research.
Jacinda Ardern’s initiative cannot do her country any harm. Twenty-three years after Port Arthur and the NFA, firearm involvement in homicide incidents in Australia, including the involvement of handguns, remains at an historic low.
While it would draw too long a bow to assert conclusively that the downturn in firearm deaths in Australia can be attributed to the gun law reforms alone, the implementation of the NFA can be closely associated with the reductions in mass shootings and firearm deaths.
The choices made by the Ardern government to eliminate certain firearms from New Zealand to improve community safety are consistent with the long-term evidence from Australia.
My research focuses on terrorism in or affecting New Zealand. Until yesterday, my phone didn’t ring that often because few were interested in anything I had to say. Since yesterday, it has not stopped.
There is no understating the horrific nature of the Christchurch tragedy. Forty nine people have been killed, and more than 40 are being treated for injuries at Christchurch hospital.
Three people have been arrested in relation to the mosque shootings. One Australian citizen has appeared in court today charged with murder.
New Zealanders will need to come to terms with this tragedy, vent emotions and frustrations, and they will want to know why this could not be stopped. These are valid questions.
New Zealand is a small country, geographically distant from the rest of the world. It has been happy in the assumption that the violent extremism that has showed itself on multiple occasions on five continents over the last 20 years had never happened here. Many New Zealanders believed that because it hadn’t, it couldn’t.
There was a definite realisation by those in the security sector that this assumption was not safe. The spread of extremism through social media simply obliterates geographical distance and there is really nothing to prevent overseas events being replicated here.
Another key problem is hindsight. Now that the culmination of a sequence of activities has become so painfully clear, it will be inevitable that several points will be picked out that security sector operators perhaps did see, or could have seen. A retrospective case will be made that therefore they should have seen this coming.
But any sign there was, would have occurred in the context of the day before yesterday. Trying to convince the average New Zealander that anything like this could ever happen here would have been no easy endeavour.
Review of gun and terrorism laws
There will be questions over the resourcing and powers of law enforcement and intelligence agencies, and rightfully so. But we must be mature and evidence-based in the conclusions we take from all this.
New Zealand’s Prime Minister Jacinda Ardern has announced a review of gun laws. New Zealand doesn’t have a gun register, but there are an estimated 1.3 million legally owned firearms, with illegal firearms a significant problem.
It is not just the law that needs a review. Gun control, monitoring and enforcement will need to be tightened, but changes need to be considered calmly and focus on the individuals that are not likely to abide by any new law. The vast majority of licensed gun owners are not a problem, but they will need to accept that military-style automatic weapons will likely be banned and a national register will become a reality.
New Zealand’s Terrorism Suppression Act was found wanting in 2007, following the “Urewera raids”. Police relied on the act to spy on and arrest activists who allegedly trained to use semi-automatic weapons in military-style camps in the Urewera forest. Then Solicitor-General David Collins QC described the act as “incoherent and unworkable”. Nothing meaningful has been done with it since.
Social media to blame
New Zealand is a democratic country in which freedom of expression, conscience, religious freedom and free speech are valued. Any legislative change will need to impinge on these as little as possible, but people need to be safe here.
Regardless of how big and well-resourced security agencies are, overseas experience has shown that individual actors, or small tightly integrated groups can slip through any security filter. It is simply impossible to monitor people’s thoughts, intentions, sayings and social media accounts so closely that every signal that someone might be planning to carry out an attack is seen.
Australian media suggestions of an “intelligence failure” are useful to a point. But the fact that at least one of the Christchurch offenders left Australia a short time ago and was not on any watch-list of concern in Australia, where police and intelligence powers are much more comprehensive, demonstrates this is a very difficult failure to guard against.
This attack was enabled by, and certainly comprised a strong element of, social media. Social media has been wilfully and readily adopted across modern societies. This has happened without much thought being given to its usefulness to organised criminals or extremists to spread their toxic views, or its ready use as a means of sourcing an audience for terror attacks.
As a society perhaps we should take pause to consider the broader implications before rushing to adopt every new piece of communications technology. It’s all very well to ask the security sector what could they have done to stop this attack, when we could ask ourselves the same – what could we have done?