Terrorism and Forth Estate.
December 05, 2002
IT is not unusual to find this newspaper's owner, News Limited, disagreeing with the Fairfax group, which includes The Sydney Morning Herald, The Age and The Australian Financial Review. Where they fight for market share, they are ferocious and unforgiving competitors.
But when it comes to industry matters where they share common interests, such as defamation, threats to journalists, the rules of parliamentary privilege and the like, it is equally not unusual to find them singing from the same song sheet.
Not so on the ASIO terrorism Bill currently before Parliament. Fairfax thinks it is wrong, and proposes changes to protect journalists. News thinks it contains enough safeguards to allow its unopposed passage.
In the middle are the legal brains of two of the nation's top law firms. One accuses the other of providing advice which is "substantially flawed" and the ensuing contretemps between the two nests of media legal eagles could be entertaining.
Fairfax's chief spin doctor, Bruce Wolpe, kicked off the ASIO debate on November 15 when he sent out an email alert saying: "We have been following the ASIO Legislation Amendment (Terrorism) Bill which has provisions that (1) provide for the arrest and detention of journalists with respect to information they may have on terrorists and terrorist activity; and (2) criminalise communication by journalists not only with detainees, but with their families and lawyers."
Wolpe attached a copy of advice on the Bill from the law firm Minter Ellison which provided the basis for evidence given by Age editor Michael Gawenda when he appeared before the Senate Legal and Constitutional Committee on November 22.
Gawenda's view was alarming. "This Bill in its current form places all journalists in the invidious position of breaking their professional bond and code of ethics or defying legal authority and risking severe penalties for doing so," he told the committee.
While accepting that the privilege flowing from the protection of sources is not absolute – "when lives are at risk, or when we learn serious crimes are about to be committed" – Gawenda says the remedy "must not be a new law so sweeping it compromises our ability to do what we do in a free society and in furtherance of the public interest".
He says the Bill's provisions, which allow journalists to be held incommunicado for 48 hours, were neither desirable nor warranted, and the sections providing for a penalty of two years' jail for journalists who communicate with detainees' families or lawyers were "more reminiscent of the former East Germany than the democracy that is Australia".
"If these provisions were law, the representations by the family regarding the condition of the Australian Taliban in Cuba – which has been of immense interest to Australians – would be criminalised," he says. "The accounts and phone calls to journalists of friends and family of certain detainees in Woomera would be a criminal act."
Not so, according to News Limited's legal advisers, Blake Dawson Waldron. In advice provided to group editorial manager Warren Beeby, the firm says the Bill contains numerous safeguards, and "it would be difficult to argue that a journalist should be placed in a special position [when] one would expect a journalist would want to reveal information [on terrorists] for the public benefit". According to Blake, "Courts have repeatedly recognised that there should be a free flow of information about security threats and indicated a qualified privilege will extend for communicating such information and recognise the duty of every citizen to communicate such information to authorities and to the public generally".
Blake says the submission to Fairfax "contains several substantive flaws". This sets the scene for ongoing legal debate before the legislation is passed. In some respects, the conflicting advice between law firms appears to be semantic – grist to a lawyers' mill – but News says it does not share Fairfax's alarm and will take no further action.
"If our journalists learn anything about terrorism in the course of their duties, we would expect them to want to share it with their readers and the authorities," Beeby says.
That is fair enough, as long as ASIO also shares that view, rather than deciding to lock up and hold a reporter incommunicado for 48 hours while he thinks about it!
My view is that the amendments Fairfax proposes strengthen the position of journalists and seek to put the issues beyond the kind of dispute the legal teams are already engaging in.
If I were working on a terrorism-related story and found myself simultaneously in possession of vital information and in the arms of ASIO, I would prefer to have the safeguards Fairfax proposes in the law, rather than in legal advice saying I didn't need them. On that basis, I reckon most journalists would agree the amendments deserve industry support.
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http://www.theaustralian.news.com.au/common/story_page/0,5744,5606953%255E12280,00.html
