Monday, 05 March 2018

 Radio National PM with Linda Mottram



Subjects: Espionage laws;

LINDA MOTTRAM: The Federal Government has rewritten its new espionage laws following claims that journalists could have been jailed for up to 10 years just for doing their jobs.

Under amendments to the National Security Bill, published this afternoon, journalists would no longer have to prove their reporting of secret documents was fair and accurate. They'd also be able to defend themselves in court by showing that they thought their conduct was in the public interest. But such protections still aren't available to other members of the public, who could face lengthy jail terms for passing on sensitive documents to the media.

Christian Porter is the Federal Attorney-General, and he's with me from Perth. Minister, good afternoon.

ATTORNEY-GENERAL: Good afternoon to you as well.

LINDA MOTTRAM: Journalists now don't have to prove their reporting of secret documents is fair and accurate. Instead, if we reasonably believe the conduct's in the public interest, that should be fine. But we still have the burden of proof - journalists have that burden of proof. Why is that any less likely to deter public interest journalism?

ATTORNEY-GENERAL: Well, that's not entirely the way in which I'd describe it.

So, the way in which the Commonwealth Criminal Code and Crimes Act works is that any defence will require the prosecution to negative – so to argue against that defence beyond reasonable doubt. So, in effect, what would have to happen here is that in the very unlikely circumstances – but they could arise at some point in the future – that these provisions were activated, the prosecution would have to show beyond reasonable doubt that the journalist was not engaging in reporting of news or editorial content that they reasonably believed was in the public interest.

So that would be something that the prosecution would have to negative – disprove – beyond reasonable doubt.

LINDA MOTTRAM: So why make the change then? What's the importance of making that change compared to what we currently have?

ATTORNEY-GENERAL: Well, this entire bill is the tenth of ten tranches of legislation that are modernising and updating our national security laws.

Why is that important? Well, the Deputy Commissioner of the AFP, with respect to the near miss on the Etihad airline, the terrorist plot that was foiled, said that the updating of the national security laws was very important to their investigation…

LINDA MOTTRAM: Sure, I think we understand that wider context but my question is really, why is there a need to change anything about how journalists are treated here if, as you say, this is not going to be a case of the burden of proof being on journalists?

ATTORNEY-GENERAL: Well, this is very much a modernising and updating of the laws. So we don't concede that it treats journalists particularly differently to the range of secrecy laws we have at the moment. But these laws do take into account that there are a whole range of changed environmental factors and these are a modernisation and updating of the law.

But we've been very careful to make sure that we've not fundamentally shifted the balance between what we obviously all want to do, which is preserve robust freedom of political communication and robust and very critical journalism and reporting, but we want to do that in a context of having our security agencies, ASIO and the AFP, able to prevent circumstances arising which are clearly not in the national interest and which can endanger Australian lives.

LINDA MOTTRAM: What type of behaviour, then, would these laws cover, in terms of journalism, that isn't already covered?

ATTORNEY-GENERAL: Well, so if a journalist printed something and they were printing and reporting and dealing and communicating with information, and they were doing so to directly or indirectly assist a foreign intelligence agency, then we think that Australians would naturally regard that as contrary to the national interest and something that could be, subject to all the circumstances, the basis for a prosecution. That is one of the issues that we're trying to deal with here.

The other issue that we're trying to deal with, and something that's happened that's very new, is you get circumstances, for instance, with a fellow like Julian Assange, who considered himself a journalist and he receives tens of thousands of documents. He makes no effort to vet and understand the content of documents, subscribes to a doctrine of radical transparency, puts those documents out for publication and those documents endanger lives because they may show that someone could come under reasonable suspicion of having been a provider of information to a US embassy and in the country in which they did that, that places their life at risk. And again, we think that in those very narrow set of quite unusual and extreme circumstances, someone publishing information in that way could potentially be the subject of prosecution, and that is a reasonable balance to strike.

LINDA MOTTRAM: So are you saying that journalists should not expect to find themselves being dragged through court any more frequently than they currently do, for matters relating to secret and top secret documents?

ATTORNEY-GENERAL: That's precisely what I would expect, although the laws represent an updating to take into account a range of developments in the media.

We don't expect that in the normal ordinary course of journalism, where people behave responsibly but obviously robustly and critically of governments and other parts of our civil society, are any more at risk of a prosecution than they have been previously.

LINDA MOTTRAM: And on the measures as they affect the public, giving secret or top secret documents to journalists: let's take the recent high-profile example of that filing cabinet in Canberra that somebody bought inadvertently with documents in it, handed those to an ABC journalist. That person would still face 10 years in jail under the amended espionage laws, would they not?

ATTORNEY-GENERAL: I don't think that you can just make that blanket assumption.

So there are a whole range of defences that would apply in the redrafted versions of this legislation in those circumstances. But also it would depend very much on the contents of the documents.

So I just can't say that that person would definitely face this or that charge. It's a very complicated and individualised situation.

LINDA MOTTRAM: Which in itself has got to have a chilling effect, doesn't it? Anybody who comes across documents is going to immediately say whoa, hang on a minute, it's complicated as the Minister said and there's possibly 10 years' jail at the end of this.

ATTORNEY-GENERAL: Well, say for instance someone who came by for whatever reason top secret government documents and they dealt with those in a way that uncovered the identity of an ASIO or ASIS officer and placed those lives at risk, or indeed dealt with those documents in a way that benefitted a foreign intelligence agency, or publication online at large that endangered the lives and safety of the Australian public - in those rare but not inconceivable circumstances we, the Government, say there must be some way in which you can prosecute to prevent and deter that type of situation arising.

And, when you look at the redrafting of this legislation, that's what we're trying to prevent. I think most Australians would think that is an eminently reasonable balance to strike.

LINDA MOTTRAM: Minister, can I just ask you about another matter in your portfolio, which is the matter of Roman Quaedvlieg, who is – you've got the final report on matters that he's involved with now – when will that be released?

ATTORNEY-GENERAL: Well, I'm endeavouring to have that determination made as quickly as possible. I understand Mr Quaedvlieg and others' frustration about the time that has taken. I received the matter on 5 February, but I'm not going to go into any of the details or context or indeed situations that arise with respect to my decision making.

I'm in the position of decision maker, not unlike a senior member of the Administrative Appeals Tribunal, and of course I can't go into of the detail of that decision making process or content.

LINDA MOTTRAM: Okay, and just on the broader political front, will Malcolm Turnbull, as Tony Abbott says today, have to explain why he should remain leader if he loses 30 Newspolls consecutively?

ATTORNEY-GENERAL: Well, I just think, for the Government, it is a matter of sticking to the task at hand. I think it's important for the Australian people.

So every Minister will have a whole bunch of those (tasks) that are very critical. In my area, it's exactly the things we've been talking about, the espionage and foreign interference laws. So, I would expect that myself, and every other minister will be focusing on those things that really count for Australians in terms of good quality government. The polls come and the polls go.

LINDA MOTTRAM: Christian Porter, thank you very much for your time.