[Peetwo]

Doc Gates on free speech and the 4th Estate - 

The following is a submission from Doc Gates to yet another self-serving politically bi-partisaned, tick-a-box parliamentary inquiry (see HERE & HERE for submissions), which IMO totally nails it when it comes to the consistent erosion of the Australian democratic processes...  
    

Inquiry into the impact of the exercise of law enforcement

and intelligence powers on the freedom of the press

Terms of Reference: b,c,d

1. I write this submission as an Australian citizen deeply concerned about the growth and
implementation of ‘security’ legislation which is supposed to be looking after ‘the public
interest’1 when clearly it is not2. Rather, it is being used to induce a ‘chilling effect’3 on the
Fourth Estate and those willing to come forward to disclose wrongdoing such as
whistleblowers. The recent oppressive, coincidental Australian Federal Police raids on the
ABC4 and a journalist5 from a private sector media organisation, the suppression order on
Witness K and Bernard Collaery6 preventing public disclosure of a non-security matter
regarding public interests, private companies, and embarrassing government involvement
which should be in the public view7, and the Richard Boyle ATO case8 are but a few examples
of the intimidatory effect of exercise of the current security legislation regime.

2. There has been a short time for public submission on the impact of the exercise of law
enforcement and intelligence powers on freedom of the press, and for a report on what is a
very complex issue involving inter alia many pieces of pertinent legislation, The Fourth Estate,
government departments, public and private organisations, and legal cases, some of them in
the public view and others hidden from public view by proscriptive legislation and government
decision making. In my view there is not sufficient time given to address this critical issue
thoroughly, to give it the attention it deserves. It might easily be concluded that this Inquiry
is nothing more than a sop to the public to give impression of doing something while in reality
nothing will be done except tightening the grip of a security agenda for political control by an
incumbent government.

3. I note that nowhere in the Terms of Reference is mention made of matters relating to
whistleblowers who play a crucial role in bringing matters to public attention frequently via
the press because safeguarding/reporting mechanisms enshrined in
legislation9/regulation/policy/mechanisms to deal with government ‘misbehaviour’ have
failed or are weak or too proscriptive, and the agencies themselves charged with public
oversight and investigation have also failed [for reasons not elaborated here]. Frequently,
whistleblowers are the ‘canaries-in-the-mine’ which tell us that the current system is not
working.

4. Whistleblowers and the Fourth Estate play a critical role in a healthy democracy and their
capacity to function must be protected and not impaired by inappropriate law, political or
administrative process10. Any inquiry must also include consideration of the role of the
whistleblower-press nexus and current inadequate protections for whistleblowers
notwithstanding recent changes to corporate whistleblower protections11.

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1 https://www.alrc.gov.au/publications/8-b...c-interest
2 https://mumbrella.com.au/four-laws-that-...essfreedom-
584900
3 https://definitions.uslegal.com/c/chilling-effect/
4 https://www.abc.net.au/news/2019-07-15/a...m/11309810
5 https://www.sbs.com.au/news/world-media-...ournalists
6 http://ilareporter.org.au/2018/08/the-pr...ndregional-
implications/
7 McGrath, K. (2017). Crossing the line. Australia’s secret history in the Timor Sea. Redback.
https://www.blackincbooks.com.au/books/crossing-line
8 https://www.abc.net.au/news/2019-06-03/a...romstress/
11167954
9 Public Interest Disclosure Act 2013 (PID Act).

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5. The current Inquiry into the impact of the exercise of law enforcement and intelligence
powers on the freedom of the press should be referred to a Royal Commission for
investigation and report because the current Committee has a ‘conflict of interest’
notwithstanding its remit under Part 4 section 29 (1)(b)(ia) of the Intelligence Services Act
2001 to review any matter in relation to ASIO, ASIS, AGO, DIO, ASD or ONA referred to the
Committee by the Attorney-General…”.

The conflict of interest relates to the fact that the membership of the Committee consists only
of representatives of the Coalition government and the Labor Party. Schedule 1 Part 3
Administration Section 14 (5) of the Intelligence Services Act 2001 states that “In nominating
the members [of the Committee], the Prime Minister and the Leader of the Government in the
Senate must have regard [emphasis mine] to the desirability of ensuring that the composition
of the Committee reflects the representation of recognised political parties.” In my view the
Prime Minister and Leader of the Government in the Senate have failed to appoint a
‘representative’ Committee. As it presently stands the Committee is made up of members of
an incumbent government and Opposition, both responsible for the current oppressive
legislation; they have a vested interest in the legislation. From a public perspective this is
equivalent to asking the fox and his mates to review rules regarding henhouse security, which
begs the question whose interests are being served and does it include the public interest?

The public perspective is critical to trust in government12. As it presently stands it looks as if
political self-interest is central to this Inquiry: The government was forced to put in place
some form of mechanism to diffuse the public clamour about the coincidental AFP raids
described earlier, and so chose a mechanism which could be controlled easily through
majority membership on the Inquiry Committee defined by legislation13, and minority ‘metoo’
Labor who could easily be ‘wedged’ politically because of prior legislative history and risk
of being defined as ‘soft on security’ should they oppose the majority. Nowhere is there
representation from other officially- recognised political parties. In effect the current Inquiry
is a populist offering for a closed political system with the major political parties the
beneficiaries. While the government admitted that they ‘got the balance wrong’ between the
press and security in their Terms of Reference for the Inquiry (it’s always good to have a public
mea culpa to take the sting out of the adverse publicity) it made a choice here to stack the
Committee in their favour when it could have chosen more wisely to deal with the public
perception and to engage in a genuine investigation. The mea culpa is a distraction. There is
nothing in the current Inquiry which gives comfort to the notion of a genuine process with the
Public Interest being served. This is a bipartisan inquiry of necessity to save political skin and
normalise the ascendancy of fear and control as an essential part of the incumbent
government’s view of democracy, a place it does not deserve.

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10 Martin, B. (15 July, 2019). Government betrays much needed whistleblowers. The Australian.
11 https://asic.gov.au/about-asic/news-cent...rcorporate-
whistleblower-protections-commences-today/
12 Smith, K. (2018). Ken Smith: how to restore public trust in government. The Mandarin,
https://www.themandarin.com.au/91350-res...overnment/
13 Committee on Intelligence Part 4 section 28(3) “A majority of the Committee’s members must be
Government members”.

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6. Transparency and accountability and trust at all levels of government, and appropriate law
and contingent regulation protecting The Public Interest, are essential to a robust, healthy
democracy.

7. The Fourth Estate plays a critical role in a healthy democracy and its capacity to function must
be protected and not impaired by inappropriate law, political or administrative process
notwithstanding the fact that the ‘human nature’ also colours the actions and purposes and
performance of the Fourth Estate. Like the rest of all human endeavour it is not perfect.

8. Legislation, policy and administrative processes are also not perfect and may be devised
and/or captured for purposes other than the public interest and to the detriment of society,
and that includes institutional safeguards. In all institutions, including government, there is
always a tension between human nature as it ought to be and human nature as it so often is14.
It requires ongoing review and amendment and adjustment. Such is the case with the matters
being considered in the current Inquiry.

9. Legislation, policy and administrative processes would be better informed by critical reference
to empirical evidence from the Sciences including the Behaviour Sciences which deal with the
vagaries of the ‘human condition’ which can be complex and unpredictable15. Indeed,
outgoing Prime Minister’s departmental secretary Martin Parkinson encouraged his staff to
“… be resolutely committed to advocating for truly evidence-based policy”16.

However, there is no evidence that the current Inquiry will examine how human nature, or
the human condition informs the current debate over Freedom of the Press and Law
Enforcement and with the recent changes in the bureaucracy there is no guarantee that any
attention will be given to evidence-based policy whatsoever17. In my view only a Royal
Commission and concomitant Amicus Curiae on human behaviour as it relates to mechanisms
for protecting the public interest beyond legal prescription is critical to an effective and robust
public interest outcome.

In view of the increasing politicisation of the bureaucracy, the Amicus Curiae should include
review of current opaque senior public servant appointment processes and contractual
arrangements to assure the public that there is a genuine arms-length appointments process
and that the senior public service is arms-length and independent in its provision of advice
and action to the political arm of government. The AFP raids on the Press and responses to
public criticism by both the AFP and their political masters and that it was somehow an
independent process, was unconvincing and requires further scrutiny at both an informal and
contractual level. Such scrutiny must be through the lens of the Behavioural Sciences which
bring some discipline to understanding and mechanism.

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14 Trigg, R. (2005). Morality Matters. Blackwell, Carlton,
15 Gates, G.R. & Cooksey, R.W. (1996). Karpin and Hilmer: classic cases of ‘It seemed like a good idea at the
time’. Journal Small Enterprise Research, Vol. 4.
16 Grattan, M. (25 July, 2019). Grattan on Friday: Morrison finds some cats defy herding. The Conversation.
17 https://

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Concluding Remarks

The current Inquiry into the exercise of law enforcement and intelligence powers on freedom
of the press is not independent with the majority of Committee members coming from the
incumbent government, and Labor party representation making up the rest. Both parties
have vested political interests in the current matter. Because of this conflict of interest and
complexity of the issues involved, the matter should be referred to an independent Royal
Commission for further investigation with the findings of that Commission to be informed by
an Amicus Curiae into the human factors which are at play in such a complex environment.
Democracy is dependent on a Free Press and protection of those who speak truth to power
such as whistleblowers. This critical issue deserves better attention than the standard
‘Hallmark’ short Inquiry with a short reporting time frame run by politicians with a clear
conflict of interest and political agenda.

Associate Professor G. Richard Gates, MSc., PhD

Former Director, MBA and Professional Practice Development Programs at an Australian
University (retired).

25 July 2019

MTF...P2