The suggestion that Australia may well be the world’s most secretive democracy is even more ludicrous when we consider its provenance, the New York Times.
This is the newspaper made notorious for its suppression of Stalin’s role in the genocide of millions of Ukrainians, of the Holocaust, and of Senator Edward Kennedy’s collusion with Soviet communists against President Reagan. More recently the NYTimes has consistently distorted news about Hamas outrages in Israel and for over two years has published fabricated stories about something which never happened, President Trump’s collusion with the Russians.
Then we had the naive suggestion that we should follow the United States with a constitutional guarantee.
But the First Amendment has not hindered several administrations, with congressional support or acquiescence, from subjecting the media to draconian controls to a degree unknown in Australia. This began with President Adams’ infamous Alien and Sedition Act, 1798, continued by President Lincoln, followed by President Wilson’s Sedition Act, 1918 and by President Roosevelt’s many-faceted attempts to control the media even before the second world war.
One of the cases frequently cited to defend press freedom is the Pentagon Papers Case, 1971. The favoured extract, which I have cited, is from Justice Hugo Black who famously declared that ‘Only a free and unrestrained press can effectively expose deception in government.’
But he was the same Hugo Black, formerly a member of the Klu Klux Klan, who set up a draconian surveillance system of telegrams to and from opponents of Roosevelt’s New Deal, including journalists, as well as accessing key opponents’ income tax returns. Roosevelt put Black on the Supreme Court and in the meantime, took control of commercial radio to ensure nothing critical of the administration was broadcast, reducing licence renewals to six months instead of three years.
More recently, the Associated Press accused the Obama administration of using the Espionage Act, 1917 ‘with unprecedented vigour, prosecuting more people… for leaking sensitive administration… than all previous modern administrations.’ The Obama administration’s threat to introduce so called ‘balance’ in broadcasting was designed to kill the highly successful, influential and opinionated conservative talkback radio.
The point is that even with the alleged benefit of a constitutional guarantee the US media have laboured under controls, including closure and imprisonment, at times far worse than anything seen in Australia, even in wartime. (The US Supreme Court has, however, re-interpreted the First Amendment making it virtually impossible for a public figure to sue for defamation and unleashing serious pornography.)
The fact is there is no simple solution which can remove the struggle between the media and the government over state secrets. That is, after all, an essential part of life in a democracy. The old adage still applies: if you don’t like the heat, don’t come into the kitchen.
And let’s be honest; neither the media nor government has come to the table with clean hands.
The politicians are notorious for strategic leaking when it suits them just as the media are notorious for selectively publishing leaks when it suits a particular agenda which they are trying to impose on the nation.
As to legislation, the defence that journalists may publish material they believe and which is found by a court to be clearly in the public interest should normally be available. But the proposition argued on TV by one journalist that journalists should never be the subject of a search warrant is a privileged status unknown in the US. The possibility that Julian Assange could claim such protection demonstrates how unacceptable and unworkable this would be.
Now, some have argued that it is very unfair to journalists that whistleblowers do not have the same defence that they have. Otherwise, it is said, journalists could still be subject to search warrants.
While we may well weep for journalists being subject to the law like everybody else, public servants full well know they are under a legal obligation not to disclose official secrets.
A whistleblower exemption should only be available in special circumstances as set out in the law.
Effective government would become difficult, if not impossible, if the public service were to be filled with Bradley and Chelsea Mannings leaking with impunity merely because they claimed publication of some official secret was in the public interest.
In the recent controversy, some in government have washed their hands saying the police have acted independently. They should be acting independently as to how they investigate. But the police should never investigate an alleged crime without a complaint and in relation to official secrets, the only complainant with standing is the government.
This clearly needs to be regularised. To make it very clear that the government is complaining, a complaint should only come from a minister with notice to the Cabinet, so that the government owns the complaint.
Sometimes the government will be encouraged to act by the opposition, as was the case which culminated in the recent raid on Ms Smethurst, notwithstanding the faux horror expressed by the opposition. And on Labor’s role, those in the media now naively lavishing praise on shadow Attorney Dreyfus should recall that he was the Attorney-General in the Gillard government when it attempted to regulate the media in a way not seen in any comparable democracy.
As to the media, it is considered good practice in some American news outlets for both the editor and the journalist to know the identity of any confidential source. This could be adopted here as an assurance to the public, especially as one well-known opinion writer has openly admitted to lying.
That practice should be obligatory with the ABC to ensure the proper observance of its Charter obligations, with the Board being informed whenever a broadcast is made of an official secret reliant on a confidential source
These two raids, one by appointment, have created much excitement but are not the end of the world. They point to nothing more than the inevitable struggle between government and the media, an essential feature of a robust democracy.
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