Yesterday, the Australian Federal Police executed search warrants against the Sydney headquarters of the Australian Broadcasting Corporation (Australia’s equivalent of the BBC and Canada’s CBC, and, to some degree, the US’ NPR and PBS) in Ultimo, in inner-city Sydney. You can read all about it here and here, and practically anywhere in Australian news.
I am not briefed in or around the matter and, moreover, as I do practice and give opinions in constitutional, public and national security law, and as I teach constitutional law, I can, in the tradition of the independent Bar, offer my own observations on the law and the process, if not the facts of this particular case (the usual presumptions operate etc).
Thus, I herewith endeavour to provide some light on the law at a time when others, who should know better, are providing so much heat, especially in respect of matters that may come before a court.
But, first, I turn to two of the key matters.
Firstly, I note that these search warrants have been executed during the processes of the criminal trial of a Mr David McBride. Mr McBride is, at all times, as is any one of us, entitled to the presumption of innocence and to a fair trial. The Crown/Government bears all of the onuses here.
Secondly, my view is that the ABC and the media, generally, can and should do all it can to legitimately challenge what actions it believes have been and/or are a violation of its rights. Australia is a robust constitutional state and we all benefit from a Government that is scrutinised, relentlessly and, we hope, in an unbiased manner, by a sceptical media. While I think a sense of perspective should be kept on these events, at the same time, we all benefit from a media that is curious and critical. I am not aware of any serious person who would doubt the need for a vibrant and inquisitive media.
As to the search warrants, which are in serial form, it is fair to say they speak for themselves. Clearly, the search is for materials relating to the Australian Defence Force (ADF), and military operations, including special forces’ activities, and related national security information. This is material that is, obviously, of the most extraordinary sensitivity for a national government. It may relate to past, present, or contemplated, wartime and security operations, and thus potentially include identifiers of Australian military, intelligence, and security services, personnel. It may also include materials concerning Defence’s own internal investigations, which may traverse an additional range of issues, including ones that may go to the fairness or otherwise of ongoing ADF probes. The list of endless complications posed by national security information, especially military information, being ‘leaked’ to the media are significant – and this is why ‘leaks’ are a criminal offence with those convicted of ‘leaking’ facing significant penalties.
One of the requirements of any form of search order, especially one for the Police, is that it describes with specificity what is being ‘searched’ for by the authority. One should add that this search was conducted peacefully – the AFP officers and agents even signed in at the ABC’s reception and then engaged in extended discussions with the ABC’s own lawyers. This was hardly the ‘afternoon of the long hard drives’. This was most certainly not any sort of "raid".
To the above, I would add the following by way of enlightening discussions on the matter of how and why the Government has a legitimate interest to defend, especially amid all the criticisms of the AFP that are now being made. In order, they are:
[1] Australia resulted from National Security concerns: The Australian union brought about by the Federation movement, the "one indissoluble Federal Commonwealth under the Crown" that commenced on 01 January 1901, resulted from the Australian desire for security - not the desire for liberty. One of the primary drivers of Australian Federation in the late 19th century was the need for the six sparsely populated British colonies to secure the enormous Australian continent and its approaches (in the late 19th century, the Australian colonists considered themselves threatened by, inter alia, Russian, German, and French, ambitions in the region). As the High Court, whose Great War courts were populated by that Australian founding generation and whose cases supply much of our law to this day, noted in 1918, “It is a matter of common knowledge that the necessity of a single authority for the defence of Australia was one of the urgent, perhaps the most urgent, of all the needs for the establishment of the Commonwealth.” The Constitution, and the High Court interpreting it, has always given significant deference, especially in time of war and crisis, to the national government and its responsibility for national security and the ‘defence of the realm’. These separate observations by Justice Isaacs – who would in due course leave the High Court to become Governor-General and thus Commander-in-Chief of the armed forces – are worth quoting at length as it gives an idea of how broad the deference to the Government is in Australian law, especially in a time of war and crisis, notwithstanding that 2019 is not 1916:
“Defence includes every act which in the opinion of the proper authority is conducive to the public security. Those who are entrusted with the ultimate power of guarding the national safety are not bound to subordinate that consideration to any other.”
“A war imperilling our very existence, involving not the internal development of progress, but the array of the whole community in mortal combat with the common enemy, is a fact of such transcendent and dominating character as to take precedence of every other fact of life. It is the ultima ratio of the nation. The defence power then has gone beyond the stage of preparation; and passing into action becomes the pivot of the Constitution, because it is the bulwark of the State. Its limits then are bounded only by the requirements of self-preservation. …. The best protection all the rights and powers so jealously, and in ordinary times so justifiably, defended can have, so far as Australia is concerned, is the very Commonwealth power that is now sought to be limited. The Constitution cannot be so construed as to contemplate its own destruction or, what amounts to the same thing, to cripple by checks and balances the ultimate power which is created for the undeniable purpose of preserving at all hazards and by all available means the inviolability of the Commonwealth and of the several States.”
The more recent 2007 case of Thomas v Mowbray affirmed the breadth of the Government applying laws made under the Defence power’s expansive reach, including control orders as against a person suspected – but not convicted – of having, essentially, skills useful to terrorism and sympathies with terrorists. There, the majority of the High Court found the control orders valid. Noteworthy was what Justices Gummow and Crennan said about the effect of the Australian Constitution on ideas of governmental duties to their citizens: “The obverse of that obedience and allegiance was the sovereign's obligation of protection. This notion of a compact sustaining the body politic cannot be weakened and must be strengthened by the system of representative government for which the Constitution provides.” Thus the Australian compact is one focused, primarily, on the Australian Crown and its Government delivering security - and not liberty - to this Australian people. Regardless of whether the Crown should have more or less power by statute made under the Australian Constitution's context, the Crown itself endures and contains by necessity all the royal prerogatives necessary to secure its realm, from making war to making peace, to resisting incursions from afar. The contrast with some republican settlement, with a government constituted by limitations on its powers, could not be starker.
[2] Australia has no First Amendment: For good or ill, Australia has no constitutionally entrenched freedom of speech and freedom of the press. Australia has never had a Pentagon Papers case. The closest approximation to the issue arising was the 1980 Defence Papers’ case, concerning leaks from the Government in respect of Australia foreign relations in respect, inter alia, of the Soviet threat, the Shah of Iran, and the East Timor crisis, in which the High Court found for the Government, albeit on the lowly ground of infringement of copyright. Even so, as Justice Mason noted, in making injunctions against publication: “If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained”. While Justice Mason believed that governmental embarrassment was insufficient a reason to enjoin publication, there is no Australian authority that any materials touching on military operations would not be prima facie barred from disclosure and publication. For those pushing an American-style First Amendment, it should be noted that the United States Government, especially under the liberal Obama presidency and even given the First Amendment, has always conducted vigorous leak probes and prosecutions of leakers (eg Daniel Ellsberg), which has in itself raised issues about press freedoms. It is very unlikely that mere changes in the law per se will change anything about the weighing up of the interests of the Government and of the media. Indeed, the American experience seems to be that little changes except battles over which ideological team’s judges sit on what courts, which is a fate I would reject for Australia and our courts.
[3] The Government has its rights, too: The Australian Government has not just a legal duty but a moral obligation to protect its national security information at all levels of security classification. The leaking of any information that compromises not just the security of the nation but also the personal security of the Government’s personnel – uniformed or civilian – is a grave danger to the Australian body politic. In terms of a “chilling effect”, I can think of nothing more deterring to those who go in harm’s way on Australia’s behalf than to have the Government's information on them and their service, especially in the realm of military operations, find its way via 'leaks' to the media, however responsible and ethical, and there be no effort by the Government to retrieve this national security material and secure it. Similarly, Australia has a very close and very deep military alliance with the United States, the United Kingdom, Canada, and other allies, and Australia shares military materials and intelligence - and Australia has shared with it military materials and intelligence - of the gravest important. Any inability of Australia to safeguard its military and intelligence materials, and retrieve them if stolen or 'leaked', prejudices not just Australia's own national security but the allied security and diplomatic relationships that the Australian Government has built up and upon for over a century. The Government’s interests and actions, which may ultimately require the purging of any storage devices or computer servers on which the material may have been stored, is, in the circumstances, a reasonable and proportionate response to the risks posed by a national security compromise of this scale.
At the root of much of this and other debates, is a fundamental misunderstanding as to how Australia is to be governed. Australia is, simply, not constituted as a democracy. Instead, constitutionally, Australia is a monarchical, constitutional, and federal nation-state, with democratic forms – but at all times within a territorial not democratic constitution.
As noted above, a key driver of the Australian union and its resulting Constitution was and is to, literally, constitute an Australian nation-state that could defend itself and perpetuate its nationhood. There were few warm American or continental style flourishes and declarations as to the ‘rights of man’ but, rather, the cold reality of an enormous Australian task to hold so large a continental nation together, come what may. The Australian intent was security not liberty.
The Australian Constitution thus vests the executive power in the Crown, ie a government vested in the Monarch, albeit a power exercised by the Governor-General on the advice of the Ministers of the day. That Governor-General also exercises the command-in-chief of the armed forces. The ministers of the Crown are drawn from the membership of the bicameral Parliament: a House of Representatives containing Members of Parliament elected by the people in 151 separate local electorates across Australia, as well as a Senate elected at large by the people of each State to represent them in the Senate as a House of Review. There is no national vote, at all. The upshot was a national government made responsible to an elected Parliament of local and State representatives. You can read more on Australia’s federal system here.
I mention this as the design of the Australian constitutional system is for a strong executive government, that can secure Australia’s interests, but which is also responsible to the Parliament. Much of what is being asked for, now, consciously or otherwise, is for the Government to be made accountable to the media for the perceived excesses or errors of war or national security activities. Our system is, instead, intended for that accounting to occur in the context of the Parliament. To be sure, the media’s role and duty is to inform and scrutinise the Parliament. But it is the Parliament’s duty to make laws that enable it to properly scrutinise and demand accounting from the Government of the day, especially in relation to its wartime and national security activities. And if a law is overly broad and oppressive, then it is for an active citizenry to pressure their representatives in the Parliament to make new laws and/or amend old ones.
We are not made secure – indeed we are made much weaker – by promoting a culture of leaking (either by any official toleration or media encouragement). This is encouraging the commission of crimes and, also, encouraging the risk that national security personnel, as well as national security information, will have their safety and privacy endangered. The Government has the duty to account to the Parliament – and it also has the duty to safeguard the lives and interests of those Australians it sends in harm’s way.
Ultimately, it is unlikely that this current episode will change anyone’s minds, sadly. The media, no doubt, has legitimate grievances as to the opaque nature of governmental activities. At the same time, heads of the armed forces and security services chiefs do play a much more public role than they did pre-2001 and have shown a willingness to explain their roles to an interested media and public. In a time of crisis, the Australian people have to be able to both trust their Government and trust their media’s reporting of what the Government and its armed forces and security agencies are doing. A more measured and open dialogue is probably the best answer, long term, and an acceptance that while the Government will not always get everything right, we are also not in some authoritarian era, either. Indeed, the best means of improvement lies with the tools that our Constitution has always provided: the power of the Parliament to hold the Government to account and the power of the Parliament to make new laws and to amend old laws.
One can only hope that a more open and transparent discussion will lead to fewer outbreaks of ridiculous hyperbole and an acceptance that the Government, too, has its legitimate interests. Australians have had 118 years of nationhood, persevering through wars and depressions, times of plenty and times of hardship, and our national endurance will continue to demand an energetic government that can both protect our constitution and free society, and secure our nation and her people.
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