Now the furore over the Chinese Embassy has died down, the Federal Government has taken a more sensible and conciliatory approach on the publication of security matters. Earlier this year, the Foreign Minister, Gareth Evans, sought “”significant penalties” to deter publication of security matters. He wanted to fine and jail journalists and fine media companies for publishing a wide range of material that might affect Australia’s national interest. There are already penalties for the security operatives who leak the material in the first place. There already are some sweeping, but unused criminal provisions for those who publish the leaks. Senator Evans, however, wanted more detailed and explicit sanctions to stop secondary publication. It was a dangerous course in a liberal-democratic society.
The formulation and application of tests about what is a “”security matter” could see any attempt at legal sanctions be turned into bans on publishing things which might embarrass the government rather than things genuinely prejudicial to Australia’s national interest. Presumably, Senator Evans thought that the disclosures over the bugging of the Chinese Embassy in Canberra would be enough to attract criminal sanctions under his new regime. Yet, just a few months later, we see that there is no discernible difference in Australia-Chinese relations as a result of the disclosure.
The coercive, punitive approach has now been put aside in a revised response by the Government to the Samuels inquiry into Australia’s intelligence system. The full details of the new regime are yet to be worked out, but it will involve a consultative process with the media and a revitalized system of D notices. D notices are a voluntary arrangement under which media organizations agree not to publish material contained in such notices. An earlier system of D notices virtually lapsed through the lack of a system to update them and regular meetings between defence officials and the media.
Revitalising the D notice system will be difficult, but much preferable to criminal sanctions. One of the first hurdles will be seeking agreement both among media organisations and between them and defence officials about what categories of information should be included. A starting point would be information that risked the lives of Australian operatives overseas. Beyond that differences are likely to occur. But it is better that media representatives and defence and foreign-affairs officials talk about the issues regularly than the Government attempt to draft a law to encompass all future situations. The latter would inevitably lead unintended consequences or governments using the law for political rather than security motives. It would also create media martyrs and perhaps undermine Australia’s international human-rights reputation.
There might be some advantage in having any renewed D notice committee contain a parliamentary representative of both the Government and the Opposition, rather than being restricted to defence and foreign affairs officials and the media. It would reduce any suspicion of the system being used for political purposes.