In this special additional chapter of The News Manual Online, we look at a number of Australian laws about national security, snooping and anti-terrorism. We examine the way such laws have developed in recent years and how they can affect the work of journalists in that country. While it refers directly to legislation in Australia, it might also be interesting for journalists from other countries with such laws or which are thinking of making such laws.
What is popularly called 'the war against terror' has had major effects on journalists throughout the world, one being an increase in the number and severity of laws on national security issues.
Many democracies have implemented laws specifically to fight terrorism, including nations which had hitherto lived in relative peace. Some of them are explicitly titled 'anti-terrorism', some are branded as 'patriotic' while others are amendments to existing criminal codes.
However they are described, almost all impact to some degree on the work of journalists.
Although terrorism has existed for centuries in many countries under different names and guises such as militant nationalism, separatism and independence movements, Australia has been relatively untouched by organised terrorism. Even the two biggest attacks on Australians, the Bali bombings in 2002 and 2005, happened overseas and Australians stood more chance of being killed by terrorists while in London, New York or the Middle East than in their own country.
However, the seemingly random and global nature of the new wave of terrorist atrocities drove the governments of many hitherto unscathed nations such as Australia to enact their own anti-terrorism laws, especially in the wake of the 11 September 2001 attacks in America and the first Bali bombing a year later. Because the so-called ‘war’ against terrorism could not be fought along conventional lines, with military responses to organised aggression, the new laws tried to be pre-emptive and to rely more on the structures and methods of the security services which, by their very nature, tended to be more secretive and less directly accountable to the general citizenry.
Before the latest spate of laws, many countries already had laws attempting to combat the overthrow of governments, attacks on citizens by political, religious or ethnic militants or invasion by other nations.
We will first look at some of the more traditional security-related laws in Australia then some more recent anti-terrorism legislation.
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Sedition laws are discussed as criminal libels in Chapter 71. In some countries they are still actively used by governments to suppress dissent, though in many free-speech democracies they have a poor history and until recent times were seldom used.
According to a Parliamentary Library report cited below: "The last Australian prosecution and jailing for sedition was in 1960, when Department of Native Affairs officer Brian Cooper was prosecuted for urging 'the natives' of Papua New Guinea to demand independence from Australia. He was charged under the Queensland Criminal Code which at the time extended to Papua New Guinea. He was convicted and sentenced to two months imprisonment with hard labour. He committed suicide four years after losing his appeal to the High Court."
The advent of tougher laws to counter terrorism has raised the issue again in Australia.
Sedition was traditionally behaviour which intended to: bring the government into hatred or contempt; excite disaffection against the government, constitution, parliament and Kings Dominions; and bring about change to those institutions unlawfully.
When interpreting sedition laws, judges have usually made a distinction between talk about changing government (the free speech aspect) and practical actions which might lead to the overthrow of a government (the criminal element). Sedition laws said citizens can be vehement about political change but they must not do anything to achieve it by illegal means, such as a coup or rebellion.
In recent years, the government has tried to extend the sedition provisions of the Criminal Code or common law with special anti-terrorism legislation, which we will look at shortly.
Treason, which has traditionally been a much more serious offence, is more to do with actual attempts on the life of the Sovereign, their representative or a Prime Minister or with helping enemies of Australia during times of war. Treason laws have not been used in many years in Australia and have now effectively been replaced by provisions within anti-terrorism legislation, most especially the Criminal Code Act 1995 as amended. You can download the most current version of the Criminal Code (in different file formats) from the Australian Attorney-General’s Department website.
Follow this link to the Parliamentary Library for a brief official history and explanation of sedition laws in Australia.
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Official secrecy laws
Many countries have official secrets legislation to stop their citizens from passing to foreign governments secret information which could damage the country.
This could be information about their armed forces and armaments - especially nuclear - or weapons research, such as biological warfare. It could also include intelligence gathering at home or spying overseas. It could even cover matters such as emergency plans in the case of a war, where the government will seek safety or how it will feed the nation.
The problem with most official secrecy laws - and with many modern anti-terrorism laws - is that citizens are not told what the secret is that is being protected. This may seem like an obvious requirement, but it can cause problems for journalists in two main areas: you may inadvertently report something covered by office secrecy legislation and you cannot serve your duty as the Fourth Estate by exposing wrong-doing if it is protected by secrecy laws.
Australia does not have an Official Secrets Act as such. It has provisions under the Crimes Act of 1914 which restrict Commonwealth public servants from revealing confidential information, though the courts have interpreted this as information affecting national security or the proper running of government, not information which is merely critical or unflattering of the government.
Individual states and territories may have legislation to prevent the disclosure of sensitive information, though this can cover a host of issues not related to national security, such as provisions in the Northern Territory’s Sacred Sites Act of 1989 protecting certain registers.
As with sedition, of more relevance to journalists today is anti-terrorism legislation, which we will discuss shortly.
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D-notices and the ASIO Act
One way Britain and Australia tried to find a balance between the citizen’s right to know and government’s need to protect national security was through systems such as D-notices.
The D-notice system is basically an agreement between representatives from government and the media that they will not broadcast or publish material which could threaten national security. From the first meeting of the Australian Defence Press and Broadcasting Committee in 1952 it was an advisory system and not binding on the media, though most did comply with it.
Although in theory D-notices could be issued whenever the Australian government suspected a journalist was getting close to revealing an important secret, in practice it has merely given general guidance on the types of issues which should not be published.
In Australia today it has fallen into disuse and the last time the committee met was in 1982. Despite suggested for some years that it should simply be scrapped, successive governments have ignored such calls.
The British system – which is now called the Defence Advisory or DA system - has been mostly inactive for many years.
Some countries have also enacted specific laws to protect single aspects of national security.
For example, in Australia the ASIO Act prevents citizens – including journalists – from revealing the identity of any employee of the Australian Security Intelligence Agency without written permission from the agency’s Director General. ASIO is the intelligence organisation set up to protect Australia from foreign threats, including spies and terrorists. There is a similar law to protect the identities or agents or staff working for the Australian Secret Intelligence Service (ASIS).
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Australia has specific laws prohibiting ordinary citizens - including journalists - from intercepting private messages and using them. These laws are often called electronic interception laws but are more popularly known as eavesdropping, wire-tapping or bugging laws.
The major law in Australia is the Telecommunications (Interception and Access) Act 1979, though there have subsequently been other laws and amendments, both federally and by individual states.
Essentially, these laws make it an offence to secretly listen in on another person’s conversation or communication, whether over conventional wired networks such as telephones, telexes or computer networks or over wireless networks, such as mobile phones or Internet. Under various amendments to the Crimes Act of 1914 - as recently as 2004 - it is also illegal to make, advertise, sell or possess electronic secret surveillance devices or software without legal authority.
The same laws make it unlawful to communicate to a third party any information obtained through secret interception. This includes publication or broadcasting such information by journalists.
Although the 1979 act was originally intended to protect the privacy of telecommunications, it also legislated for the authorities to tap into private communications in the case of threats to national security and drug trafficking. The act required the authorities to obtain a warrant before undertaking eavesdropping. An amendment in 2002 included activities such as terrorism and child pornography in the realm of legally-sanctioned interception.
Subsequent amendments and other laws have further extended the scope of legal eavesdropping so that nowadays electronic interception legislation has as much to do with giving police and security agencies legal access to the private communications of its citizens as it has to protecting their privacy. At present, the Rudd Government is considering extending the laws even further to give private companies some rights to tap into private telecommunications - particularly over computer networks - for the protection of 'essential infrastructure', though it has yet to define what this means.
Civil liberties groups are also concerned that the government is considering legislation allowing the police or intelligence services to tap people’s calls or bug their conversations without a warrant.
As mentioned earlier, as with many security-related laws, citizens may not be aware of the powers government agencies have or how they use them. And there is an added danger for journalists in that your own conversations might be tapped or bugged by police or intelligence services, especially if you are investigating some corrupt or dishonest behaviour.
In one of the most famous stories of investigative journalism - the Washington Post’s Watergate reports - journalists Bob Woodward and Carl Bernstein often had to use public telephones or meet contacts in underground car parks to minimise the danger of their office or home phones being tapped or their conversations being bugged by the authorities.
At the end of this chapter there are links you can follow for more information.
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In the wake of the 11 September 2001 attacks in the United States, and following bombings in Europe and South-East Asia, many governments around the world introduced strict anti-terrorism laws.
Although many lawyers and civil liberties organisations argued that existing criminal laws were sufficient to deal with the new wave of terrorism, many governments felt their security services needed new and increased powers so they could take action in secret, without the kind of public scrutiny which might alert the terrorists.
In the general atmosphere of fear - created partly by terrorist attacks and partly by the new laws themselves - many of the basic principles of human rights, constitutional and statutory safeguards and common law were suspended. For example, laws restricting electronic interception were amended so police and intelligence agencies could eavesdrop on private conversations and tap into personal communications more easily.
In many countries, the common law protections offered by habeas corpus for hundreds of years were reduced or suspended so that security forces could detain suspects in secret for interrogation for longer and longer periods. In some countries laws were introduced or changed to prevent an arrested person’s family from knowing what had happened to them.
Provisions protecting freedom of speech - either constitutional or implied - were either reduced or suspended altogether so in some circumstances it is now an offence for a journalist even to report that people had been arrested under anti-terrorism laws.
One positive result of this flurry of legislation in Australia - apart from any effect it might have had on preventing terrorist acts - was to clarify a number of legal issues which had either become dubious over the years or which had not been updated to reflect a socially, economically and technologically complex 21st Century society.
Perhaps the most significant of these developments were the numerous amendments to the Criminal Code Act of 1995. In all, the Australian Parliament passed 54 amending acts between 1998 and 2008, an average of more than five a year. Most involved anti-terrorism or other national or economic security measures, though the Act as amended also contains sections on people smuggling, sex offences and people trafficking, theft, fraud and several other categories of crime.
The current version of the Criminal Code Act runs to 634 pages, including schedules. It is perhaps one of the most complex pieces of criminal legislation on the Australian statutes and far too involved to examine in detail here, although the following aspects are worth noting in relation to terrorism and national security:
It consolidates a number of criminal issues, including those concerning treason, sedition and border security. It clarifies the maximum penalties which can apply. In the case of treason this is life in prison.
It contains a very full definition of what constitutes terrorism and terrorists. Essentially it defines terrorism as an act or threat of an act for a political, religious or ideological cause which kills or harms people or damages or interferes with property (including electronic systems) with the purpose of intimidating a government or the public.
The Criminal Code allows the Attorney-General to list as 'terrorist organisations' groups known to have carried out terrorist attacks or which provide practical support to terrorists. The Attorney-General’s Department advises that, under the Criminal Code:
"It [is] an offence to direct the activities, become a member, recruit for, train or receive training from, get funds to, from or for and provide support to a listed terrorist organisation. It is also an offence to associate with another person who is a member of, or who promotes or directs the activities of, a listed terrorist organisation. Penalties for these offences are severe, with imprisonment for up to 25 years. A person who has trained with a listed terrorist organisation may also be subjected to a control order."
The Attorney-General has listed 19 groups as 'terrorist organisations'. Names and details are available at the department’s Australian National Security website, along with other information on counter-terrorism in Australia.
Obviously the laws on terrorism and assisting terrorists apply to journalists as to every other citizen. The anti-terrorism legislation overrides defences of privileged information and effectively strips away whatever limited shield law protection journalists enjoy to protect their sources, so that contact with terrorists could expose you to serious risk of prosecution in what you do or write.
Indeed, the laws go one step further and require every citizen - including journalists - to inform the police whenever they have information about a real or suspected terrorist or about a terrorist attack, whether planned or executed.
Some common features which could affect your work under Australian anti-terrorism and national security laws include:
- Restrictions on what you can write or broadcast on actual or potential acts of terrorism;
- Restrictions on information available to you about terrorism, investigations or prosecutions;
- Restrictions on how you can obtain information about or from terrorists or suspected terrorists;
- Restrictions on traditional protections for journalists' sources and, in some cases, making it an offence to withhold any information from police or security forces;
- Restrictions on freedom of movement for journalists doing their work by giving police new powers to detain people or prevent access.
Media reactions to anti-terrorism laws in Australia have varied. Some journalists and media organisations have enthusiastically lined up behind stricter government controls over them while others have spoken out against them.
As with most laws that can affect the media, as a journalist you should know when you are out of your depth and seek advice from more senior colleagues or lawyers employed or retained by your organisation. Considering that the penalties for breaching anti-terrorism and security laws can be very severe, it is important that you understand the dangers and make thoughtful decisions.
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National security and anti-terrorism laws affect all citizens but there is often secrecy about how they are applied. This can make the work of journalists difficult and dangerous.
Sedition laws have fallen into disuse, but are being replaced by specific laws on national security and terrorism. It is your task as a journalist to know what laws apply.
It is illegal to tap into, eavesdrop on or bug private conversations and also to use any information obtained.
Many new security and anti-terrorism laws override some traditional freedoms - such as habeas corpus - which journalists have taken for granted. You may need to rethink your attitude to many other laws in these new circumstances.
Although legislation is never simple or straightforward, if you want to see the exact wording of Australian and New Zealand laws, go to the Australasian Legal Information Institute (AusLII) site and use the Advanced Search facility to browse for acts and amendments. Note that when amendments are made to existing laws, these are normally all wrapped up into a consolidated act.
For critiques of laws - especially legislation which is pending – you can go to organisations such as Electronic Frontiers Australia or the Communications Law Centre.
SS8, a commercial company providing interception services internationally, publishes a survey on interception legislation in 31 countries on its website at http://www.ss8.com. Note: you are required to provide contact information before downloading the report. The Australian Mobile Telecommunications Association (AMTA) hosts a slightly older but unrestricted pdf version of The Ready Guide to Intercept Legislation surveying 24 countries. Note: It is a large (1.47MB) file.
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