Minor fix for what is very bad legislation

THE Abbott government has made an important but insufficient concession on freedom of the media and its national security laws.

Attorney-General George Brandis has decided that under Section 35P of the National Security Amendment Bill any prosecution will have to have the explicit approval of the Attorney-General as well as the Director of Public Prosecutions.

Under the draconian Section 35P, any publication of information about a Special Intelligence Operation (SIO) can be punished by five years in prison, or in more serious cases 10 years. One of the most excessive elements of this legislation is that an SIO can never be reported on, even years after it is completed. Similarly, a government can define almost anything it likes as an SIO, provided it involves ASIO, and the government formally designates it as such.

This is inherently very bad legislation that is only marginally improved by the latest move.

The government — and the opposition, which supports the legislation — argue that it is not directed at the media. In that case the media should be exempted.

The government argues that the designation of SIO will only be applied to a small proportion of ASIO’s work. But we cannot know anything of this independently and such an assurance relies entirely on the goodwill of the government. That’s not the way accountability works in a democracy.

As time goes by there will be remorseless pressure to designate more operations as SIOs. The inherent design flaw of this legislation is it allows governments to declare whole operations forever off the record. That is an excessive power and it changes fundamentally, and much for the worse, the power relationship between government and the media.

The latest Brandis move is designed to protect journalists in a very peculiar way. For a prosecution to be launched the DPP would have to be satisfied that the legislation had been breached. That is a very low bar because anything written or broadcast about an SIO would on its face breach the legislation.

The new Brandis move means that the DPP’s decision to prosecute would then have to be co-signed by the Attorney-General. Brandis believes that, because the Attorney-General is always a practising politician, no one in the role would ever court the direct hostility of the media by authorising such a prosecution. I don’t think that makes much sense nor offers much protection to a free press.

There is no need for this particular legislation. There is virtually no case of any mainstream Australian media revealing an intelligence agent’s name or publishing in a way which fundamentally compromised national security interests. But not only that, a free society means a free media must have a wide degree of discretion about what it publishes. Sometimes it will make mistakes, but more often not. The mistakes are the price of freedom. An intelligent dialogue with the media is much better than anti-democratic legislation.

A free society requires that the government must not be able to declare whole chunks of reality as simply unreportable under any circumstances.