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Press Freedom in Australia: Democracy, Transparency, and Trust

photograph of two security cameras on side of building

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

This past week on Wednesday morning June 5, the Australian Federal Police raided the headquarters of the ABC, Australia’s national broadcaster and the most trusted media organisation in the country. Files were seized relating to a story from 2017 known as The Afghan Files sourced from leaked documents some of which detailed disturbing allegations of misconduct and criminal activity by Australian Special Forces serving in Afghanistan between 2009 and 2014.

The previous day, Tuesday June 4, the AFP had raided the home of News Corp Journalist Annika Smethurst in connection with a story she published over 12 months ago about the government secretly canvassing a plan to allow the National Signals Directorate to spy on Australians without their knowledge by hacking into critical infrastructure.

These raids have provoked outrage in Australia and beyond. It must be noted that the timing of consecutive raids is extraordinary, given that both reports concerned are well over 12 months old, and are in no way related to one another. The searches have raised concern about press freedom in Australia, with the media union denouncing them as a disturbing attempt to “intimidate” journalism.

Overseas media organisations like the BBC and The New York Times have weighed in on the raids. In a statement on Twitter the BBC said “this police raid against our partners the ABC is an attack on press freedom which we at the BBC find deeply troubling.” And The New York Times reported that Australia May Well be the World’s Most Secretive Democracy. Indeed, the Australian government has become increasingly tenacious in its pursuit of secrecy on a range of fronts, under the ever-broadening umbrella of ‘national security.’

These raids suggest that knowledge, which is merely inconvenient or embarrassing to the Australian government, is being guarded under the cloak of national security. Many observers dispute the characterization of either of these stories as genuine security issues. It is clear, also, that the release of both stories are overwhelmingly in the public interest. As such, it appears the government’s sweeping national security powers are being used to silence and intimidate journalists and their sources.

At the center of the debate is the question of what kind of security matters count as genuine reasons to keep knowledge from the public, and what constitutes an overwhelming public interest. At issue is balancing the principle of the public’s right to know with government’s need for confidentiality to protect other important things like security.

In the era since September 11, in response to the heightened threat of domestic terrorism, Australia has zealously pursued anti-terror, security legislation that has significantly advanced government agency powers. One such law, passed in 2015, requires internet providers and mobile phone networks to store customers’ metadata – the sender, recipient and time of emails and calls. The government argued that the bill was necessary to help Australia’s security services fight domestic terrorism. Those laws were further expanded once again at the end of 2018. There are limited defense provisions for journalists on the basis of public interest, but very weak protections for whistle-blowers who might be sources for investigative journalists.

If ‘national security’ is being used, as many civil liberties advocates worried it would be, to shut down debate and to silence public conversation, this has grave implications for Australia’s democratic integrity. There are deep issues at stake, in terms of the citizens’ ability to trust in the institutions of government, and to be protected against capricious acts by institutions, agencies, and governments. While security and confidentiality are important values, they must not be used by governments to hide things about which we ought to know, and we have to be able to trust that they are not.

It is ostensibly a conflict between the public’s right to know and the government’s right or need to protect confidential information, but that may be a false dichotomy. The interest of the people ought to be the only thing that determines the interest of a properly liberal democratic government –that is its raison d’être and its sole source of legitimacy. That is the ideal of a free democratic society – it is not however true in practice, and the distance between this ideal and reality is the measure of the extent of corruption of the modern democratic state. Corruption thrives on secrets.

Transparency and accountability are two of the most important principles for the functioning of an open, free society. They are both necessary conditions, without which a free, democratic society is not possible. We must be able to trust that, when knowledge which may have profound implications for our society is withheld on security grounds there is a genuine security risk associated with its disclosure. Yet that expectation of trustworthiness appears to have been breached, as the Australian government seeks to enforce its culture of secrecy by employing tactics of intimidation.

Australians have been asked to accept the erosion of many freedoms for the protection of national security. If these raids are not shown to be precipitated by genuine security concerns, the government’s ability to prosecute a case for genuine security needs in the future is compromised.

In a democracy the citizens legitimize the power of the state, and a democratic government has to be accountable to the citizens. A free press is what makes that accountability possible. In general, truth is fundamentally important for the function of an open, healthy democratic society, and we should lean heavily on the side of the public’s right to know and err on the side of transparency.

While some civil liberties advocates have long expressed scepticism about the wisdom of sweeping security laws, especially since Australia, lacking a bill or charter of rights, does not have strong legal protections for freedom of speech protecting the press, more broadly there has been a failure of community and political opposition to critically examine new security laws for how they could be misused; a failure which political commentator Waleed Aly described as a failure of civil reasoning. That failure has occurred in the context of a political culture dominated in Australia by ‘national security’ over other civic freedoms and rights.

The national conversation Australia is now having is about press freedom and its importance for democracy. Those participating need to remain cognizant that at stake is the abstract political and philosophical question of the legitimacy and the limit of state power.

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Unpacking the Tactic of Shutting Down the Government

A woman holding a sign that says "stop the shutdown"

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

800,000 federal employees furloughed, $5.7 billion demanded, and $11 billion of the American economy wasted over 35 days. These numbers dominated headlines in January as President Donald Trump entered a stalemate with Congress that launched the U.S. into its longest ever government shutdown. The stalemate occurred when Trump demanded that funding for a border wall between the U.S. and Mexico (one of Trump’s campaign promises) be included in an end-of-the-year Congressional appropriations bill. The Democrat-controlled House of Representatives swiftly shut down this demand, to which Trump responded by partially shutting down the federal government, putting 800,000 federal employees out of work: that is, 380,000 employees could not go to work, and another 420,000 were considered “essential” employees and had to work without pay. Vital government services were disrupted including the TSA, National Park Service, and Coast Guard. This shutdown lasted 35 days, costing the American economy about $11 billion and 0.2% of the nation’s GDP during the first fiscal quarter of 2019.

While Trump remains adamant about acquiring funding for his border wall, the American people seem uncomfortable with using a government shutdown to do so. In a CBS News poll, 70% of Americans did not believe the U.S.-Mexico border wall to be an issue worth shutting down the government for, and in a different poll, 53% of Americans blamed Trump for the shutdown. From these numbers, it is clear that the American people are not supportive of shutting down the government for a border wall, but how can government shutdowns be assessed as a political tactic in general? Is it ever ethical to shut down the government in order to reach certain political means, despite widespread public disapproval? To more accurately weigh this question, it is imperative to step away from partisan language, which can be done by comparing Trump’s shutdown to another shutdown that occurred under a Democratic administration: the government shutdown of 2013.

From October 1 to October 17 of 2013, the federal government was shut down under President Barack Obama over disagreements about the federal budget for the 2014 fiscal year. The Republican-controlled House of Representatives refused to adopt a budget that included funding for the implementation of one of Obama’s benchmark policy achievements, the Affordable Care Act (also known as Obamacare). While the 2018-19 shutdown was almost twice as long, this shutdown occurred before funding for many more federal services could be secured in the year, meaning the shutdown cost a lot more for the American economy. In fact, it cost over twice as much at $24 billion. The government opened back up after 16 days when Congress compromised on a bill that included Obamacare funding, but ensured stricter income verification rules for those trying to access health insurance exchanges.

To wade through heavy partisanship, these two shutdowns must be compared by their objective facts. Firstly, both of these shutdowns put about the same number of people out of work: 800,000. Additionally, while the 2013 shutdown cost significantly more than the one in 2018-19, it’s difficult to dispute that both shutdowns were incredibly costly to the American economy. By these facts, and the history of American government shutdowns in general, government shutdowns can be accurately described as wasteful, expensive, and harmful to many American workers, and the American public realizes this. As stated earlier, 70% of Americans disapprove of the most recent shutdown, and even more (81%) disapproved of the shutdown in 2013. What is more concerning is the fact that these shutdowns have become longer-lasting in recent decades. In the past 10 years, the government has been shut down for a total 55 days, as opposed to 29 days in the 1990s, and 14 days in the 1980s. Not to mention, government shutdowns almost never achieve their intended purpose. The 2013 shutdown failed to block Obamacare funding, and Trump had to use executive action to acquire funding for his border wall rather than successfully working with Congress to pass a bill into law. The American public sees the failures of government shutdowns, with seven in every ten Americans saying that shutting down the government is not an effective strategy for reaching policy solutions. With such low popularity and chances for success, why do politicians continue to utilize shutdowns? Is it ever permissible to shut down the government? Under what circumstances might a government shutdown be an effective tool?

While the causes of shutting down the government are variable, the effects seem to be the same: great cost to the U.S. economy, hundreds of thousands of federal workers furloughed, and an American public that is even more distrustful of government. Therefore, because the duty of the government is to help provide for the welfare of its people, it must be weighed what will bring more welfare to more people, or rather, what will bring less harm to fewer people. In the case of 2013, it was argued by congressional Republicans that Obamacare would limit individual freedom and collapse the American economy. So, they temporarily sacrificed the welfare of some for what, in their eyes, would be the prolonged welfare of many. Similar logic followed with the shutdown of 2018-19. Trump holds that there is a national security crisis at the U.S.-Mexico border, claiming that many of the illegal drugs in the U.S. come from Mexico over the border, and that thousands of violent criminals enter the U.S. via illegal border crossings. Subsequently, he ordered a government shutdown because he is convinced that the temporary setbacks caused by a shutdown are worth preventing what he perceives as a national security crisis at the border.

However, whether or not an issue is worthy of a shutdown is dependent upon how one prioritizes national concerns. For instance, while Trump believes there is a security threat at the border, congressional Democrats see this threat as minimal, if there is even a threat at all, and do not see a border wall as an effective way to alleviate this threat. More central to the issue of government shutdowns in general, however, is how one defines “welfare of the people” as the government is supposed to provide. Trump and other border hawks may define welfare as security and protection of a nation’s citizens and adopt policies in line with what they believe will fulfill that definition. Alternately, Obama and Democrats may define welfare as a right to health under any circumstances, which would justify their push for the Affordable Care Act. Regardless of partisan alliances, shutting down the government is a drastic measure that should be reserved for drastic issues. The core of the debate lies in what one defines as a “drastic” issue.

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Government Leakers: Liars, Cowards, or Patriots?

James Comey, former Director of the FBI, recently testified in front of the Senate Intelligence Committee regarding conversations that he had with President Trump. The public knew some of the details from these conversations before Comey’s testimony, because he had written down his recollections in memos, and portions of these memos were leaked to the press. We now know that Comey himself was responsible for leaking the memos. He reportedly did so to force the Department of Justice to appoint a special prosecutor. It turned out that his gamble was successful, as Robert Mueller was appointed special prosecutor to lead the investigation into possible collusion between the Trump campaign and the Russian government.

After the testimony, President Trump blasted Comey as a Leaker. He tweeted, “Despite so many false statements and lies, total and complete vindication…and WOW, Comey is a leaker!” Trump later tweeted that Comey’s leaking was “Very ‘cowardly!’” Trump’s antipathy towards leaking makes sense against the background of the unprecedented number of leaks occurring during his term in office. It seems as if there is a new leak every day. Given the politically damaging nature of these leaks, supporters of the president have been quick to condemn them as endangering national security, and to call for prosecutions of these leakers. Just recently, NSA contractor Reality Winner was charged under the Espionage Act for leaking classified materials to the press. However, it is worth remembering that, during the election campaign, then-candidate Trump praised Wikileaks on numerous occasions for its release of the hacked emails from the Democratic National Committee.

A cynical reading of this recent chain of events suggests that the stance that government figures take towards the ethics of leaking is purely motivated by politics. Leaking is good when it damages a political opponent. Leaking is bad when it damages a political ally.  Sadly, this may be a true analysis of politicians’ shifting stances towards leakers. However, it does not answer the underlying question as to whether leaking can ever be morally permissible and, if it can be, under what circumstances might it be?

Approaches may differ, but I think it is reasonable to ask this question in a way that assumes that government leaking requires special justification. This is for two reasons. First, the leaking of classified information is almost always a violation of federal law. Leaking classified information violates the Espionage Act, which sets out penalties of imprisonment for individuals who disclose classified information to those not entitled to receive it. As a general moral rule, individuals ought to obey all laws, unless a special justification exists for their violation. General conformity to the law ensures an order and stability necessary to the safety, security, and well-being of the nation. More specifically, the Espionage Act is intended to protect the nation’s security. Leaking classified information to the press risks our nation’s intelligence operations by potentially exposing our sources and methods to hostile foreign governments.

Second, as Stephen L. Carter of Bloomberg points out, “leakers are liars,” and there is a strong moral presumption against lying. Carter provides a succinct explanation: “The leaker goes to work every day and implicitly tells colleagues, ‘You can trust me with Secret A.’ Then the leaker, on further consideration, decides to share Secret A with the world. The next day the leaker goes back to work and says, ‘You can trust me with Secret B.’ But it’s a lie. The leaker cannot be trusted.”

The strong presumption against lying flows from the idea that morality requires that we do not make an exception of ourselves in our actions. We generally want and expect others to tell us the truth; we have no right ourselves, then, to be cavalier with the truth when speaking with others. Lying may sometimes be justified, but it requires strong reasons in its favor.

Ethical leaking might be required to meet two standards: (A) the leak is intended to achieve a public good that overrides the moral presumption lying and law-breaking, or (B) leaking is the only viable option to achieving this public good. What public good does leaking often promote? Defenders of leaks often argue that leaking reveals information that the public needs to know to hold their leaders accountable for wrongdoing. Famous leaker Edward Snowden, for example, revealed information concerning the surveillance capabilities of the National Security Agency (NSA); it is arguable that the public needed to know this information to have an informed debate on the acceptable limits of government surveillance and its relation to freedom and security.

Since leaking often involves lying and breaking the law, it must be considered whether other options exist, besides leaking, to promote the public good at issue. Government figures who criticize leakers often claim that they have avenues within the government to protest wrong-doing. Supporters of Snowden’s actions pointed out, however, that legal means to expose the NSA’s surveillance programs were not open to him because, as a contractor, he did not have the same whistleblower protections as do government employees and because NSA’s programs were considered completely legal by the US government at the time. Leaking appeared to be his only viable option for making the information public.

Each act of leaking appears to require a difficult moral calculation. How much damage will my leaking do to the efforts of the national security team? How important is it for the public to know this classified information? How likely is it that I could achieve my goals through legal means within the government system? Though a moral presumption against leaking may exist—you shouldn’t leak classified information for just any old reason—leaking in the context of an unaccountable government engaged in serious wrongdoing has been justified in the past, and I expect we will see many instances in the future where government leaks will be justified.

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FBI and Its Hacking Power

On Thursday, April 28, 2016, the Supreme Court heard a proposal to amend Rule 41 of the Federal Criminal Procedure, which details the circumstances under which a warrant may be issued for search and seizure. The proposal asks to extend the parameters of search warrants to include “access to computer located in any jurisdiction,” according to a Huffington Post article written Thursday.

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