Australian Government Shuts Journalists’ Mouths

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Free speech

World Press Freedom Day was celebrated on May 3, marking the 250th anniversary of the world’s first freedom of information law, which came into effect in Sweden and Finland.

And just last year, Prime Minister Malcolm Turnbull stated that the role of journalists was ‘to stand up to the powerful’, adding that our democracy ‘depends vitally on a free and courageous press who are not cowed by governments and by big vested interests’.

But the government’s actions are in stark contrast to its words.

Anti-Terrorism Raids

New laws passed under the guise of protecting the public against terrorism not only now allow government agents to commit crimes against members of the public with impunity, but criminalise any reporting of those crimes.

Section 35P of the ASIO Act, for example, provides immunity from both civil and criminal prosecution to officers who engage in unlawful conduct during ‘special intelligence operations’ (SIOs), such as anti-terrorism raids.

The law effectively allows officers to commit heinous crimes against members of the public during terrorism and other ‘intelligence’ raids, even if it turns out that the information upon which the raids were based was wrong and the individuals did nothing wrong.

An example was the unprecedented operation conducted at around 4.30am on 18th September 2014, which saw over 800 specially trained officers conduct raids on 25 homes across Sydney and Brisbane. Only two people were arrested during that operation, and just one person was charged with any crime. A single parent family who dared to speak out about the horror of what they endured, reported that several heavily armed officers broke down their door, pulled the mother from her bed half-naked and assaulted one of her teenaged boys. The family said they had nothing to do with any form of criminal activity, let alone terrorism.

There is good reason why we did not hear about the many other raids that occurred during the operation- the ASIO Act makes it a criminal offence for journalists and media organisations to report about SIOs.

In fact, journalists face up to five years in prison for reporting on such operations – even if the information reveals that the officers engaged in criminal conduct outside of the operation’s scope.

This means journalists can be imprisoned for reporting about unlawful assaults or even the use or torture by officers who, once again, cannot face civil or criminal prosecution for such conduct – an extraordinary situation comparable to the powers of the Schutzstaffel (or ‘SS’) during Nazi Germany.

No public interest defence is available to journalists or media organisations, nor is it a defence to be unaware that the raid was classified as an SIO.

This is just one of the laws passed by our Federal government right under our noses, with bipartisan support and very little public dissent.

Detention Centres

The government has also managed to criminalise those who dare speak out about human rights abuses in detention centres.

Last year, the Border Force Act prescribed a maximum prison sentence of two years for ‘entrusted personnel’ who disclose information about such abuses. These personnel include not only detention centre employees, but doctors, psychologists and counsellors who attend the centres to treat and counsel detainees.

Those who think the government won’t use these powers should be reminded that, even before the broad new provisions were passed, then Immigration Minister Scott Morrison expelled and threatened to prosecute 10 staff members of the charity group ‘Save the Children’ from Nauru Detention Centre for speaking out about the sexual abuse of children in that facility. The charity is now considering legal action against the government, with a report recommending they should indeed be compensated.

The government’s conduct towards a group which seeks to protect children is just one example of its skewed priorities – with the importance of guarding itself against criticism apparently overriding that of exposing paedophiles and safeguarding children against sexual abuse.


Insiders who want to do the right thing and expose crime, corruption and misconduct in Australian government organisations should beware – as speaking out means they can also face the prospect of imprisonment.

There are laws, for example, which criminalise the ‘unauthorised disclosure’ of information by a Commonwealth officer, or a person performing services on behalf of the Commonwealth – which covers employees, contractors, suppliers and a whole host of other people who have dealings with government departments.

Those who speak out against unlawful conduct within government organisations face the prospects of a two year prison sentence.

Metadata Being Used to Target Journalists

As previously reported, new Commonwealth laws mean that phone and internet service providers (ISPs) are now required to store the personal metadata of subscribers for two years, and hand it over to a host of law enforcement and government agencies upon request, without them having to obtain a warrant.

Although these laws were ostensibly passed as a national security measure to protect against terrorism and organised crime, there were concerns – as expressed in our two-part series on the laws, and blogs to follow – that they would be used to target and suppress individuals who dared speak out against the government, and even to build cases against people for conduct which has nothing to do with national security.

As also recently reported, the new laws are now indeed being used for purposes which have no relevance to their stated objectives – even for relatively trivial measures such as Local Council investigations into residential compliance.

Just last month, we learned that the Australian Federal Police (AFP) used the laws to access the data of Guardian journalist Paul Farrell, who wrote an article critical of Australia’s asylum seeker policy.

The AFP trawled through his email records and carried out ‘subscriber checks’, presumably to identify the confidential sources of his information. The organisation created a 200-page dossier on Mr Farrell, comprising 51 documents and over 800 electronic updates, in an investigation reminiscent of a totalitarian regime.

In another recent incident, journalist Greg Sheridan had his exposé about the draft defence white paper referred to the AFP for investigation.

And last year, journalist Michael Gordon was referred to the same organisation for investigation after writing about the government’s proposed reforms to citizenship laws, which have now come into force and effectively make the Immigration Minister the judge, jury and executioner when it comes to deciding whether to strip dual nationals of their citizenship.

Journalists are now well and truly on notice that they are subject to investigation and potential criminal prosecution for speaking out against the government.

Australia was once known as a liberal democracy, where individuals were free to speak their minds without fear of reprisals, where we had little reason to fear agents of the state, where misconduct could be publicised and government agents and officials made accountable.

Sadly, it seems that unless we wake up and let the major parties know that the current trend is not ok – that we won’t continue to accept the removal of our safeguards and protections – our degeneration into a ‘police state’ will continue.

Despite the potential ramifications, there are still many journalists, non-government organisations, lawyers and even police officers who continue to speak out against injustice. But without the will of the people, it seems little will change.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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