The Opposition and minor-party senators better have a good look at Gareth Evans’s proposed law to make it a crime for the media to disclose security information. There is a dangerous circularity about his plan that puts the Government above scrutiny. The law proposes that it be a crime to disclose “”security information”; that trials be held in secret and that the only defence be “”illegality under Australian law of an act the subject of a disclosure”. Under the ASIO Act “”security” is defined as the protection of the Australian people from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on the defence system and acts of foreign interference. Evans has not put forward his definition of security information, but presumably it will take a similar form. If so, it will embrace quite a wide field. This is in a package with secret trials and only one defence of illegality. It has the potential for significant breaches of civil liberties and for a government to hide a range of unsavoury, if not illegal, activity. It will also cause a deal of uncertainty. We saw that last week with the disclosure of the bugging of the Chinese Embassy.
The Government clearly did not want that disclosed. Under Evans new law, a media organisation might be able to defend itself on the ground that bugging the Chinese Embassy is illegal because the Diplomatic Privileges and Immunities Act embraces into Australian law the Vienna Convention on Diplomatic Relations and that convention says the premises of a mission shall be inviolable. But what was Evan’s approach to that argument? He suggested that the bugs (if there were any!) were legal because they had been obtained under warrant. The ASIO Act has a convoluted double negative to support Evans’s proposition. It says listening devices are illegal unless you get consent or a warrant from the Minister (not a court). There are still arguments that support the view that the Diplomatic Act might over-ride that, but that is a side issue. The real issue is Evans’s thinking. It suggests he will frame his new gagging law that way. It would mean the mere issuing of a warrant by the Minister to install listening devices would be enough to make the bugging legal. Drawing the analogy with present law, the same would apply to search warrants and phone tapping. And, perhaps, ministerial warrant could make legal a host of activities that might otherwise be illegal.
It would even be retrospective. In other words, under Evans’s thinking, ministerial say-so could be used to determine whether actions by security agents are legal or not and thereby affect the any defence a media organisation might have for disclosing those actions however unsavoury, violent, deceitful or against the public interest they might be. Under present law, the Minister can issue a warrant if he is satisfied that the person being bugged is engaged in or likely to be engaged in activities prejudicial to security. Under the Evans view, once he issues the warrant all actions under it are legal _ which would mean any media defence for disclosing them would be defeated. If Evans imagines that it is legal to bug the Chinese Embassy just because a Minister has issued a warrant, where will it stop? Perhaps a minister could “”be satisfied” that a Green senator was helping people engaged in a forest sit-in which would result in politically motivated violence.
He could issue a warrant to bug the Green senator’s private residence, or perhaps her office. Far-fetched? Never mind, you will might never know about it. If the media attempts to disclose it there will be a secret hearing for an injunction. There will be the threat of a secret hearing that might result in jail if the media do disclose it. All is well. Trust the Minister. Why do we need a free press to uncover unsavoury activities of government agencies? Maybe the Opposition will go along with this Executive determination of what is legal. If so the media might have to rely on the High Court to invalidate the law on a couple of counts. First, it might be an infringement of the new-found freedom of political communication. Scrutiny of the Executive is an essential element of that. Secondly, the whole exercise will have to rely on the defence power for its constitutional efficacy. The High Court will be reluctant to allow a minister’s opinion as to what is prejudicial to security _ that is, a defence matter _ to found the silencing of press discussion.
There has to be an objective test. If the High Court does not rule that way, it seems the new Evans approach will allow the Executive to determine what is legal and having done that determine what will be a crime to disclose _ subject only to an easy requirement that the Government show the disclosure would be damaging damage. Why is Evans opposed to an objective tests by courts on whether disclosure is in the public interest? Because that would not prevent or punish those embarrassing disclosures like bugging the Chinese Embassy or mistreating ASIS agents. This has more to do with embarrassment of Governments than national security.