PRESS FREEDOM IN AUSTRALIA: Letting The Light In - Part Two

The Canberra Times, 6 June 2018:

2GB radio host Ben Fordham also revealed this week that he has been contacted by the Department of Home Affairs about his reporting, with the department investigating how he obtained "highly confidential" information about asylum seeker vessels.

Fordham said the department was seeking his co-operation with the probe, which could become a criminal investigation and "potentially" involve a police raid.

https://youtu.be/Tc8Sn6gF6KQ

The original radio broadcast……

2GB Radio, Sydney Live with Ben Fordham, 3 June 2019:

The Department of Home Affairs is investigating reports from Sri Lanka that up to six boats could have recently attempted journeys to Australia.

Home Affairs Minister Peter Dutton admitted last week there could be a wave of illegal vessels headed for Australia after 20 Sri Lankan asylum seekers were sent back.

A senior source in Home Affairs has told Ben Fordham Mr Dutton is currently in Sri Lanka because “there could be up to six boats in play”.

Out of the six believed to be headed for Australia, some may have been disrupted.

Ben says the recent wave of illegal boats could be because of the recent federal election.

“Is there a chance that the people smugglers were able to flog seats on boats… because they thought Labor was going to win the election?”

Full original segment audio can be accessed here.

Further reading

North Coast Voices, 9 June 2019, PRESS FREEDOM IN AUSTRALIA: Letting The Light In - Part One

North Coast Voices,  June 2019, On 4 June 2019 federal police raided home of Newscorp journalist over story detailing an alleged government proposal to spy on Australians

The Turnbull Government is about to decide what is in the "public interest" and what is "fair and accurate reporting"...

And how the Turnbull Government couches these definitions in relation to national security and classified information may decide if a whistleblower or journalist ends up spending two years in an Australian gaol.

Excerpts from National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 currently before the Parliament of Australia:

122.4 Unauthorised disclosure of information by Commonwealth officers and former Commonwealth officers

 (1) A person commits an offence if:

(a) the person communicates information; and

(b) the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth  entity; and

(c) the person is under a duty not to disclose the information; and

(d) the duty arises under a law of the Commonwealth.

           Penalty: Imprisonment for 2 years.

(2) Absolute liability applies in relation to paragraph (1)(d)

Note: A defendant bears an evidential burden in relation to the matters in 10 this subsection (see subsection 13.3(3)).

122.5 Defences

Powers, functions and duties in a person’s capacity as a 4 Commonwealth officer etc. or under arrangement……

Information communicated in accordance with the Public Interest Disclosure Act 2013

(4) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information in accordance with the Public Interest Disclosure Act 2013.

Note: A defendant bears an evidential burden in relation to the matters in 24 this subsection (see subsection 13.3(3)).

Information communicated to a court or tribunal

(5) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information to a court or tribunal (whether or not as a result of a requirement).

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3))......

Information dealt with or held for the purposes of fair and accurate reporting…

(6) It is a defence to a prosecution for an offence by a person against this Division relating to the dealing with or holding of information that the person dealt with or held the information:

(a) in the public interest (see subsection (7)); and

(b) in the person’s capacity as a journalist engaged in fair and accurate reporting. Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3))......

Excerpts from Advisory Report On The National Security Legislation Amendment (Espionage And Foreign Interference) Bill 2017, 7 June 2018:

SECRECY OFFENCES - DEFENCES AND OTHER MATTERS

Recommendation 26

5.87 The Committee recommends that the following proposed defences be broadened to cover all dealings with information, rather than being limited to communication of information:

§ proposed section 122.5(3) – relating to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Law Enforcement Integrity Commissioner,

§ proposed section 122.5(4) – relating to the Public Interest Disclosure Act 2013,

§ proposed section 122.5(5) – relating information provided to a court or tribunal, and

§ proposed section 122.5(8) – relating to information that has been previously communicated. 

Recommendation 27

5.90 The Committee recommends that the Attorney-General’s proposed amendments to the defence for journalists at proposed section 122.5(6), and the associated amendments at 122.5(7), be implemented. This includes expanding the defence to all persons engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interest.

The Committee also recommends that the Government consider further refinements to the proposed defence in order to

§ make explicit that editorial support staff are covered by the defence, including legal advisors and administrative staff,

§ ensure editorial staff and lawyers, who are engaging with the substance of the information, be required to hold a reasonable belief that their conduct is in the public interest, and

§ allow administrative support staff working at the direction of a journalist, editor or lawyer who holds the reasonable belief, to benefit from the defence.

The Australian Attorney-General and Liberal MP for Pearce Christian Porter sent out this media release on 7 June 2018:

Attorney-General, Christian Porter, welcomed the release today of the Parliamentary Joint Committee on Intelligence and Security on the Government’s National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.

"This is a major step forward in securing passage of this critical legislation and protecting Australia’s democratic systems from Foreign Interference, and it is my expectation that the Bill will be considered and passed during the next sitting period later this month," the Attorney-General said.

"The Committee has made 60 recommendations, the large majority of which are minor changes to definitions and drafting clarifications. The most substantive changes are those that adopt the Government’s proposed amendments which I submitted to the Committee as part of its deliberations earlier this year.

"Those Government amendments expanded the public interest defence for journalists and created separate graduated offences for commonwealth officers and non-commonwealth officers. The amendments were designed to strike the best possible balance between keeping Australia safe and not impeding the ordinary and important work of journalists and media organisations.

"In addition to minor drafting amendments and the adoption of the substantive Government amendments that I provided earlier this year, the additional substantive changes now recommended include that:

*There be a reduction to the maximum penalties for the proposed new secrecy offences, and to require the consent of the Attorney-General to any prosecution under these proposed new secrecy offences;

* That all secrecy offences in other Commonwealth legislation are reviewed; and

* Clarification that the journalism defence extends to all editorial, legal and administrative staff within the news organisation.

"Even in the time that it has taken to consider the Espionage and Foreign Interference Bill, the threat environment has changed and become more acute. As senior ASIO officials have said repeatedly in recent months, we now live in a time of unprecedented foreign intelligence activity against Australia with more foreign agents, from more foreign powers, using more tradecraft to engage in espionage and foreign interference than at any time since the Cold War."

"Given the rapid change in the threat environment it is the Government’s intention to consider the report and recommendations for amendments very quickly and my expectation is that the Bill, in essentially the form now recommend by the Committee, should be passed through Parliament during the next sitting period later this month; noting of course the primary and most significant recommendation of the report is that the Bill be passed."

The Attorney-General said this Bill and the Foreign Influence Transparency Scheme Bill were both critical to modernising our national security laws as part of the Turnbull Government’s commitment to keep Australians safe and the Attorney-General wanted to make particular note of the hard work of the Committee in the last two weeks to produce this most recent Report.

"Safeguarding Australia’s national security will always remain the Turnbull Government’s number one priority and the Committee’s role in considering and making amendments to national security legislation is at the centre of a process that has seen ten tranches of national security laws passed since 2014, with the Government accepting 128 recommendations of the Committee, resulting in 293 Government amendments," the Attorney-General said.

"This process was conducted squarely in the national interest and represented a real fulfilment of Australians expectations for cooperative bipartisan conduct when serious national security issues are at stake. On this point I would like to personally thank the Chair Andrew Hastie MP, the Shadow Attorney–General, the Hon Mark Dreyfus QC MP, and Deputy Chair, the Hon Anthony Byrne MP, for their skilled and good faith dealings with my office to deliver recommendations which ultimately improve the Bill."

It goes without saying that incorporated community organisations, grassroots activists and social media bloggers/commentators are not afforded the protection of any detailed set of defences set out in the bill or in report recommendations.

On 8 June 2018 this was how the Australian Conservation Foundation (ACF) and World Wildlife Fund - Australia saw their position under the provisions of this bill and review recommendations:

WWF-Australia and the Australian Conservation Foundation say charities who hold the Australian Government to account on its environmental record, could be charged under proposed foreign interference and espionage laws.

Both groups say changes recommended by a bipartisan committee, to address “overreach” concerns with the Bill, don’t go far enough.

“We could still be charged with espionage just for doing our job, which is a ridiculous situation,” said WWF-Australia CEO Dermot O’Gorman.

Charities such as WWF-Australia and ACF are often sought out by international bodies to provide independent analysis and a scientific assessment on the Australian Government’s environmental performance.

If either organisation briefed the International Union for the Conservation of Nature (IUCN) on failings to address threats to endangered species they could be charged with espionage. 

Or if they gave evidence to the Organisation for Economic Co-operation and Development (OECD) on shortfalls in Australia’s record on the environment they could face espionage charges. 

“Providing independent analysis is core business for environmental organisations trying to save Australia’s forests and threatened species,” Mr O’Gorman said.

“Would the 2050 Plan to save the Great Barrier Reef have happened without attention from UNESCO?”

ACF Acting Chief Executive Officer, Dr Paul Sinclair said: “Protests and advocacy may make some politicians uncomfortable, but they are essential ingredients of a vibrant democracy and healthy environment.

“Our security is of course important. But restricting civil society advocacy in its name is dangerous and would limit the community’s ability to hold the powerful to account for any damage they cause to our clean air, clean water and safe climate.

“All parties must work to rewrite this bill to strengthen protections for the public oversight, free expression and peaceful protest that makes our democracy strong.”

These conservation organisations have some reason to be concerned as committal for trial for an espionage or foreign interference offence is essentially a political decision taken by the Attorney-General, given s93.1 of National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 requires consent from the Attorney-General to proceed.

Given the antipathy displayed by the Abbott and Turnbull Coalition Governments towards any form of organised political, social or environmental activism, it is not hard to imagine a scenario in which a federal government would act maliciously against those opposing its policy positions or actions and use the provisions in this bill to effect such an act.

Commonwealth Bank may be investigated for victimisation of whisleblower offence

The Australian bad bank reports flow like an never-ending stream …..

The Sydney Morning Herald, 7 May 2016:

The chair of the powerful Senate economics references committee has lashed the Commonwealth Bank its "unacceptable" lack of attendance at a Senate inquiry into wrongdoing within its insurance arm CommInsure and has accused the bank of bullying. 

The rebuke comes as lawyers for CommInsure's former chief medical officer turned whistleblower Dr Benjamin Koh revealed they had lodged a formal request with the Australian Prudential Regulation Authority and the Australian Securities and Investments Commission to "explore prosecution of certain employees of the bank for their victimisation of Dr Koh".

Under section 156C of the Life Insurance Act, 1995, victimisation of a whistleblower can carry a prison sentence of up to six months. 

Then Australian Attorney-General George Brandis in March 2015: "Media organisations are not the target of this law. The targets of this law are criminals and paedophiles and terrorists"*

The Australian federal police have admitted they sought access to a Guardian reporter’s metadata without a warrant in an attempt to hunt down his sources.

It is the first time the AFP has confirmed seeking access to a journalist’s metadata in a particular case.

The admission came to light when the AFP told the privacy commissioner it had sought “subscriber checks” and email records relating to the Guardian Australia journalist Paul Farrell, and the correspondence was sent to Farrell by the office of the Australian information commissioner……

The AFP’s submission said: “You will see that exemptions have been claimed under s47E(d) and s37(2)(b) on some folios. These exemptions primarily relate to e-mail and other subscriber checks relating to Mr Farrell, and examination of meta data associated with some electronic files.”  [The Guardian, 14 April 2016]

At 11.35am AEST on 17 April 2014 The Guardian published journalist Paul Farrell’s article Australian ship went far deeper into Indonesian waters than disclosed with this map:

And this observation:

The redacted version of the classified report, obtained by the Australian Associated Press under freedom of information laws, said: “Entry to Indonesian waters was inadvertent, arising from miscalculation of the maritime boundaries, in that the calculation did not take into account archipelagic baselines.”

Crucially, the report adds: “Territorial seas declared by foreign nations are generally not depicted on Australian hydrographic charts.”

But the digital map from the vessel casts doubt on these findings, and clearly shows the Australian ship crossing the red line that marks the point of Indonesia’s baselines and entering its waters past the headlands near Pelabuhan Ratu bay. Indonesia’s territorial seas are 12 nautical miles further out from where the baselines are marked in red. It is not known whether the digital mapping device was operational at the time the Ocean Protector entered Indonesian waters.

If he wasn’t a blip on the Australian Federal Police radar before the publication date of that article, Paul Farrell was from then on.

However, it is unclear if the initial request to investigate this journalist came from the then Minister for Immigration and Border Protection, Scott Morrison, his department or some other individual or agency.

Although what appears to be Folio 3 of an est. 200 pages in Case No.5610147 seems to suggest that Customs (now called Border Force) may have been the complainant of record by May 2014 and the media finger points to the head of Australian Customs and Border Protection Services, Michael Pezzullo.

On 12 Febraury2016 Farrell stated of this investigation:

The files are made up of operational centre meeting minutes, file notes, interview records and a plan for an investigation the AFP undertook into one of my stories. Most concerning is what appears to be a list of suspects the AFP drew up, along with possible offences they believe they may have committed.

The documents show that during the course of an investigation into my sources for a story I had written, an AFP officer logged more than 800 electronic updates on the investigation file.

Farrell is not the only journalist whose metadata has been accessed in search of sources, but the Australian Federal Police insists that it has not accessed any journalist’s metadata for the last six months – the last time being in 13 October 2015.

Footnote

* See http://www.smh.com.au/federal-politics/political-news/probes-of-journalists-communications-records-rare-police-say-20150317-1m1g9d.html

The fate of one whistleblower whose evidence was presented to the Royal Commission into Institutional Child Sexual Abuse

Extract from Australian Newspaper History Group May 2015 newsletter:

82.1.1. Jewish newspaper and a whistleblower

The Australian Jewish News (AJN) has made a senior journalist redundant after he passed on information that helped a royal commission and led to the resignation of Australia’s most senior Rabbi (Australian, Media section, 2 March 2015). Adam Kamien, who had worked for AJN since 2006, became the only person in the newsroom to be made redundant following an internal investigation into how text messages ended up being used by the Royal Commission into Institutional Responses to Child Sexual Abuse. The text message, sent from the Rabbi Meir Kluwgant to the editor of the AJN, Zeddy Lawrence, and read out at the royal commission, described the father of an abuse victim as a “lunatic” who neglected his children. “Zephaniah is killing us. Zephaniah is attacking Chabad. He is a lunatic on the fringe, guilty of neglect of his own children. Where was he when all this was happening?” Under intense cross examination, Rabbi Kluwgant said he sent the message to Lawrence during the commission evidence of Zephaniah Waks, father of victim and whistleblower Manny Waks. Soon after admitting to the text, Rabbi Kluwgant resigned as president of the Organisation of Rabbis of Australasia.

Yeshiva College sex abuse victim Manny Waks told the Australian Kamien was a whistleblower who courageously ensured that justice was done. “In my view it’s clear that the journalist was effectively dismissed for disclosing to me a vital bit of evidence for submission to the royal commission,” he said. “Had the text message not been disclosed, Rabbi Kluwgant would probably still have his senior leadership positions and victims and their families would still be accused of exaggerating the intimidation. The journalist’s disclosure ensured the truth was told. It vindicated us fully.”

The AJN launched an internal investigation into how the text message found its way to the royal commission and Kamien was suspended on full pay pending the outcome of an investigation. A few days later the AJN confirmed it had concluded its investigation and would “take no further action in relation to the matter”. But on Friday, 27 February, group general manager Rod Kenning sent an email to staff saying that Kamien’s position as senior journalist had become redundant as part of a restructure of the editorial team.

An update on Steve 'Houdini' Cansdell

Sydney Morning Herald journalist Sean Nicholls is like a dog with a bone. And for that the public (and those in the NSW electorate of Clarence in particular) should be most grateful.

Cansdell, the disgraced former MP for Clarence, has pedalled off into the sunset with his taxpayer-funded booty (aka a state parliamentary pension) despite significant questions remaining unanswered about his involvement in Cansdellgate.

Nicholls wrote:

Lessons from political Houdini

The award for the most outstanding public escape act of recent times must surely go to the former member for Clarence, Steve Cansdell.
You recall Cansdell: he was the former professional boxer and parliamentary secretary for police who became the O'Farrell government's first political casualty only months after it took office.
The then 60-year-old quit Parliament after his admission that he had falsified a statutory declaration to claim a staff member was driving when his car was snapped by a speed camera.
Cansdell was trying to avoid losing his driver's licence. Despite the incident occurring back in September 2005, he fell on his sword in September 2011, amid a chorus of sympathy from his Nationals colleagues.
Cansdell was "paying a very heavy price for a lapse of judgment six years ago", the leader of the Nationals and Deputy Premier, Andrew Stoner, said at the time.
Only later did it emerge that shortly before Cansdell put his hands up, the staff member in question, Kath Palmer, had blown the whistle on the episode to the Independent Commission Against Corruption.
So if Cansdell was not quite pushed - he claimed he quit to save the government and the party from embarrassment - he was very firmly nudged.
Not only had Palmer alleged the statutory declaration fraud, she alleged that Cansdell had also rorted a parliamentary staffing allowance by wrongly claiming it for the period she worked on the 2010 campaign of a Nationals colleague, Kevin Hogan, who was contesting the federal seat of Page.
And so began a very strange - many would say disturbing - series of events involving the ICAC, the police and the Speaker of the NSW Parliament that remain unresolved to this day.
In October last year, just over a year after Cansdell walked into Grafton police station with his lawyer to make his admission, police announced they had concluded their investigation into the statutory declaration matter.
"NSW Police Force will not instigate criminal proceedings," they said in a statement.
What had happened? The statement explained police from the Coffs-Clarence local area command had identified the woman who signed the declaration but that "she declined to be interviewed by officers".
Futhermore, it added, the Commonwealth Director of Public Prosecutions had said it was "not satisfied there are reasonable prospects for conviction for a Commonwealth offence".
For the NSW police, that was the end of the matter. But they omitted a couple of key details.
While it was true Palmer, through her lawyer, had refused to be formally interviewed, she had offered to make what is known as an "induced statement" - one given in return for indemnity from prosecution.
According to Palmer's lawyer, Mark Spagnolo, the police had earlier made it known they intended to charge Palmer with perverting the course of justice for her role in the false statutory declaration. Any admission in an interview was likely to lead to her being charged.
Police deny she was threatened with a charge but their decision to refuse her offer to supply an induced statement was rather ambitiously twisted to become Palmer "declined to be interviewed".
Second, the Commonwealth DPP claimed it had been verballed. It said it had simply advised the NSW police that they were not satisfied it was a Commonwealth offence - a subtle but important difference.
Things became even more intriguing when it emerged the ICAC had referred the allegation that Cansdell had rorted his parliamentary allowance to the Speaker of the NSW Parliament, Shelley Hancock, who was technically Palmer's employer.
The ICAC referred the matter "for action as considered appropriate". But no action was taken for a year by Hancock, until Spagnolo released the letter publicly through Fairfax.
After that Hancock, who is also the Liberal member for South Coast, promised that parliamentary officers would "review the material" sent by the ICAC. This included a spreadsheet containing the dates on which Palmer alleged Cansdell submitted claims for the allowance that differed from the days she worked. That was last October.
What has happened since then? Hancock passed the matter to the executive manager of the Department of Parliamentary Services, Rob Stefanic, who responded that he was "unable to reach any conclusions regarding the veracity of the claims made by the former electorate officer".
Stefanic added that because, in his opinion, the allegations were "of minor significance", that so much time had elapsed and that both Palmer and Cansdell had resigned, no further action should be taken "in the absence of more conclusive information". (Never mind that the allegations, if proven, are similar to those which saw two former Labor MPs, Angela D'Amore and Karyn Paluzzano, branded corrupt by ICAC.)
When Hancock was asked if the Parliament would contact Palmer to request "more conclusive information", she said it would not.
"As Ms Palmer did not make a complaint directly to the Parliament, the Parliament will not be contacting the complainant for further information."
So, 18 months since Palmer made her official complaint, there the matter lies: a tangled mess of contradictory claims, dead ends and official inertia.
Palmer is understood to be considering whether to pursue the matter with Parliament or drop it altogether to get on with her life.
Spagnolo has called for an inquiry into the police handling of the matter. The silence has been deafening.
Cansdell now says he has gone bankrupt.
And, while there is no suggestion he is implicated, the man he is alleged to have helped out by fiddling his taxpayer-funded entitlements, Kevin Hogan, has won Nationals preselection to contest Page at this year's federal election.
As a lesson in the frustrations of being a political whistleblower, it doesn't get much more instructive than that.

Source: The Sydney Morning Herald, 19/1/2013