Q&A recap: Nick Xenophon speaks out over secret trials as panel discusses whistleblowers, security

The former Senator fired up as the ABC panel show discussed secret trials and security overreach in Australia.

Former Senator Nick Xenophon.

The panellists on Monday night’s Q&A program faced a body of questions about whether the security apparatuses in Australia was starting to overreach.

Grappling with issues including the pursuit of whistleblowers and secret trials, the panel began the debate by characterising Australia’s current relationship with China, and whether China’s ambition had been underestimated.

Lawyer and former Senator Nick Xenophon said while a re-evaluation took place, Australia needed to stay “cool headed”, base the process on facts and look at what was in the nation’s interest.

Xenophon announced late last year that he would represent Chinese-owned telecommunications company Huawei.

“We don’t blindly follow what the Trump Administration says or does in respect with China,” Mr Xenophon said. “We need to do what’s in our national interest.”

Host Hamish Macdonald pointed out that China’s national intelligence laws indicated Huawei would have to co-operate with requests from the intelligence and security agencies in China to supply information.

However, Mr Xenophon said Huawei had made it clear their primary role is to comply strictly with the laws of Australia.

“They have gone to intelligence agencies and said we will do everything you need us to do to co-operate to ensure that there are no breaches of cyber security,” he said.

News Limited journalist Annika Smethurst. Picture: Sean Davey

Should journalists be charged for releasing material that is in the public interest? #QandA pic.twitter.com/y2AkAzoiTc

— QandA (@QandA) June 22, 2020

AFP raids on journalist Annika Smethurst

The conversation then moved onto journalist and AFP raid victim Annika Smethurst, who was asked whether she believed journalists were above the law.

“Do I think I’m above the law? The police came to my house with a warrant and trespassed. Do they think they’re above the law would be the question there,” Ms Smethurst said.

“I’m not a person that thinks we’re entitled to know everything that happens out there but … the law is 100 years old and it does say you can’t give information.

“If that information is sent to me, then that puts me at fault.”

Do journalists consider themselves to be above the law? #QandA pic.twitter.com/gFm7AviH3d

— QandA (@QandA) June 22, 2020

Ms Smethurst continued her argument by saying there were several professions that had “carve-outs” providing privileges that made them above the law.

“The laws don’t work to allow journalists to do the job that they want to do,” she said.

National security analyst Clinton Fernandes argued the media did not get to decide what level of classification any base of information had, but noted under Australia’s security system, the government did not exclusively get to decide what information the public needs to hold it accountable.

“There are some times when the media has to exercise independent judgment,” he said.

Counter-terrorism expert Jacinta Carroll said regular independent reviews of security intelligence found that it was “absolutely essential” – even in a liberal democracy – to be able to undertake information that must be protected.

“But it’s equally important that those agencies that do that and the way they do it are accountable,” Ms Carroll said.

Mr Xenophon jumped in saying the level of scrutiny in intelligence services was “woeful” and asked: “When does it have to be a secret in terms of our national security for the protection of Australian citizens?”

Ms Smethurst said when it came to press freedom, Australia was going backwards.

“I think we definitely do struggle and we need to step up,” she said. “At the moment Australia in terms of press freedom needs to be sitting at about 21. We’re at 19. We’re going backwards.”

Former head of Foreign Affairs, and ASIO, Dennis Richardson. Picture: Nikki Short

Secret trials ‘fundamentally wrong’

Former Director-General of ASIO Dennis Richardson said under current legal proceedings, it was ultimately the court that would determine what was kept privileged and what was made public when secret trials – like the one against lawyer Bernard Colleary and Witness K – took place.

However, Mr Xenophon likened the process to “having a footy match with one hand tied behind their backs” and being “blindfolded at key parts of the trial”.

“There can be information that the defence can’t access. They’re limited in what they can access, in terms of their cross examination,” he said. “That is fundamentally wrong.”

Will the public ever be fully informed of the extent to which secret trials occur in Australia? #QandA pic.twitter.com/9tMXE0itjc

— QandA (@QandA) June 22, 2020

Macdonald asked Bernard Colleary if he thought it was in the public’s interest to know the substance involved in the trial.

“I’m a proponent of the intelligence functions,” Mr Colleary said. “But there must be a line drawn at times where the function (of agencies) is not effective and is not proper, is not necessary and it may not be lawful.”

Mr Colleary said there should be penalties for the deliberate smearing of whistleblowers.

“If that’s part of an attempt to prevent a public disclosure that is in the public interest, that is genuine, then there should be penalties,” he said.

Agreeing with Mr Colleary, Ms Smethurst said whistleblowers in Australia were treated appallingly and argued press freedom would never be met until there were protections for people that spoke up.

“We don’t have enough people speaking out because of the way we treat them,” she said.

Macdonald turned the discussion to the accidental discovery of the secret trial of a Witness J. Mr Fernandes was asked how this could occur in Australia.

“Look, I don’t know the agency that Witness J worked for, but I can guess,” he said. “If people were to find out – especially hostile governments – his real identity, they’d be able to put together a pattern of his life to work out who he had contacted in their country and roll up any agent network he had established.

“That’s the best defence I can give you.”

Ms Carroll ended the discussion by pointing out one of the issues in Australia’s system was the lack of capacity within the media industry to support knowledgeable investigative journalism.

“We have newspapers closing down. We have basically two companies that control the private media industry in this country. How well informed can the public be?” she said.