Anyone studying the chequered history of leaks of national security material over recent decades could be excused for thinking that the primary purpose of laws against leaking has been to conceal bureaucratic incompetence and double-dealing, and hypocrisy, political cupidity and criminality by Australian politicians, soldiers and intelligence officers.
That's the bad thing because it has made it difficult to preserve secrecy over secrets that are probably worth concealing from public or enemy gaze. Just as seriously it has, or ought to have, shaken public confidence in the honesty and integrity of Australians - politicians, administrators, intelligence officials and defence force officers - some of whose work must necessarily be conducted out of the public eye. If they are using and abusing national security laws to cover up shameful and unconscionable conduct, including murder, and criminal misconduct, questions must be asked about whether they ought to have the powers they have.
The government legal establishment, as much as the intelligence establishment, defends a relentless campaign of terror against leakers, arguing, quite unconvincingly, that the sin of leaking is greater than any iniquity the leaker has revealed. Rather than arguing for the rule of law, or basic human rights, Commonwealth lawyers have been arguing that ordinary legal rights must take second place to a view of the interests of the state that no one is allowed to challenge.
In one sense, the Attorney-General has done the Australian community no favours by simply ordering an end to the persecution and prosecution of Canberra lawyer Bernard Collaery.
It is true that it was more than time that the prosecution was discontinued, because of the damage already done to Collaery and to the public interest.
But some will fear that a political intervention, without an actual trial, means that defenders of what occurred can claim that he would have been convicted had not politicians interfered. They can claim, and already have claimed, that the discontinuance proves Dreyfus to be soft on national security. They will say it will encourage other self-styled martyrs to leak material that does real harm to the nation.
Just the same people argue that the slightest relaxation of the official policy of extreme cruelty to boat people is likely to send a message suggesting that Australia is wavering on its shameful and inhumane policies, leading to a fresh flood of people fleeing wars and persecution that Australia did so much to foster. And much the same people have sought to conceal the ways that Australia carries out its policies, under an entirely confected claim that publicity might allow "enemy" people smugglers to learn the tactics we use to frustrate their search for a safe haven. The real story, of course, is that Australia's armed forces., and probably a significant portion of Border Force would not do what they do if the public gaze were on them.
But the power of the first law officer to call a halt is not there to cut off political embarrassment, even if it sometimes serves that purpose. It is clear, if only from recent debacles, and some yet to come, that those weighing prosecution must consider what is likely to be achieved by a successful prosecution.
If the answer is humiliation, embarrassment and a loss of public confidence in the judgment of our national security guardians, an attorney-general may not think that any public interest is being served by prosecution. Yet such a public relations disaster is precisely what has been in prospect from most, if not all, of the recent cases. The public will not accept that the secrets in question are ones that ought to be kept for the national good. They do not automatically trust the self-styled, and far-from-detached experts.
We are robust enough a nation that we can face up to official misconduct or poor performance, whether by our spies, our services, or even our politicians.
Dreyfus can see that, as could George Brandis, who gave masterly inattention to the Collaery file on his desk, even when he received a nudge from his bureaucrats. That Christian Porter signed where a space was left, says lots about Porter's legal and political judgment.
Alas, Dreyfus knows that all the current prosecutions are as weak and indefensible as the Collaery one. His bureaucratic advisers will be putting heavy pressure on him to keep at least one going to show he is not lily-livered. And the record of Dreyfus gives little confidence in his independence of judgment in such matters. It was during his last period in office, in 2013 that ASIO began to move on Collaery.
Some officials with a reasonable reputation on defence and security matters might wonder whether their automatic assertion of the absolute secrecy due anything with TOP SECRET on it helps keep secret things that ought to be secret. A good many Australians, indeed, think the recent leakers are Australian heroes, and that those prosecuting, or those whose behaviour has been disclosed, are villains. Such obvious infidelity to the real public interest takes some on a path to conspiracy theories and treating the state as an enemy.
Australia does not have a big record of leaks that have genuinely compromised the nation's safety, or disclosed secrets which ought to be kept. Even the wartime Soviet espionage in Australia, conducted by some communist officials, disclosed nothing that did Australia, or the Allies (who included the Soviet Union), serious damage. Other than, that is, the conclusion that wartime security here was a bit of a joke. This was something the Americans had discovered even before they knew of the Soviet espionage.
Since that war, leaks that have led to prosecutions have involved disclosures of illegal or improper conduct at official level. They have revealed the purest hypocrisy on the part of politicians and officials, shown to be doing what they deny they are doing. They have shown misconduct, overreach or abuse of power. It is because of those qualities, not some joy at compromising military or intelligence operations, or revealing real defence secrets, that journalists have ignored laws against disclosure, believing themselves to be acting in the public interest. Journalists are not always right, but, on these matters, they have proven better judges of the public interest than those trying to cover up or avoid embarrassment or accountability. Most prosecutions have failed.
They have not compromised active military or intelligence operations. In some cases, as when it was disclosed that Australia was bugging the conversations of the wife of the Indonesian president, there was diplomatic embarrassment aplenty, but no lasting damage to relations.
In every recent leaking case, including the Assange or Wikileaks revelations, disclosure has been in the public interest. The fear of such "improper" disclosure by public-spirited officials sick of the lying and impropriety may even act as a deterrent on improper behaviour by some of our officials. No one could suggest that the checks and balances inside the system have been any sort of disincentive.
No modern common law state has laws so draconian, and court processes defying almost every principle of natural justice. It is what we have come to when the guardians are allowed to be their own guardians.
Oppressive laws damage ability to protect secrets
The Australian government needs intelligence about what other nations are doing and a national security apparatus to protect our legitimate military and strategic secrets from foreign agents. We spy to reassure ourselves that things are as the leaders of other nations pretend them to be. Organisations such as the Australian Secret Intelligence Service are almost by definition engaged in illegal espionage abroad, sometimes compounded by blackmail, coercion, and breaches of local law. Some activities, if done here, would be criminal under Australian law.
Likewise, Australia finds out information about our neighbours from allies, from satellite, radio, and telecommunications intercepts, from bugging and from well-disposed citizens of other countries, or Australian businessmen and tourists. The mere fact that local illegality is involved may underline why those engaged in such practices on the nation's behalf need the protection of national security laws here. It is sometimes true that disclosure may put the lives of our agents at risk. But there is little actual evidence that this has occurred, even (or especially) with Wikileaks disclosures.
But the fact that we can rationalise Australian spying on other countries, even in breach of their laws, does not justify all intelligence operations. Nor does it mean that every intelligence operation deserve protection simply because politicians or top intelligence officials have approved it. The national interest does not, for example, justify assassinations in other countries.
It is one thing to determine to keep a close eye on, say, China and Indonesia to see whether their deeds match their words. But most Australians would consider that intensive spying on an extremely poor newly independent country seeking to renegotiate maritime boundaries with Australia was not cricket, not fair and was an abuse of trust. An improper Australian advantage was not a proper Australian national interest, particularly if we are thinking of a long-term relationship. It did serve the purposes of an Australian-domiciled partner in a multinational consortium seeking to exploit oil and gas reserves. That takes the operation from one of dubious national value to one that is morally questionable. That some officials involved in authorising the spying later took jobs with the oil company increases the sense that our spy services were used for private, rather than public purposes.
But it should not only be for the disclosure of the Timor burglary and bugging that the activities of those seeking to criminalise leaking should be judged. David McBride, an Army officer, is charged over the leaking, to the ABC, of information showing that Australian soldiers had engaged in war crimes in Afghanistan.
This was long before the Brereton inquiry confirmed that such war crimes fitted into a pattern of appalling and murderous conduct by a small number of military units. The leaking served to encourage others to disclose misconduct they had seen, and to make virtually impossible any effort to sweep the misdeeds under a rug.
Anyone who doubts that the Defence and political establishments would have covered up what occurred had it been possible should look at their histories. They should also consider how raising hysteria about government secrecy - because of the threat of terrorism, of paedophilia and the "war drums" of conflict with China - has served to frighten off whistleblowers and those whose consciences have been revolted by what has been done in our name.
A News Ltd journalist had police combing through her underwear drawers when she disclosed unofficial proposals between two empire-building bureaucrats to massively increase the size and reach of the national surveillance state, already of a totalitarian Chinese mould. A tax official is being prosecuted for leaking details of allegedly improper methods employed by tax investigators. In the only successful prosecution in decades, the full weight of the state fell upon an Aboriginal public servant who disclosed deliberate government deception leading to the Northern Territory intervention in 2007.
Meanwhile, some of the very politicians and public servants most given to calling in the constabulary to initiate a leak investigation - police never do one unless they are asked - themselves freely disclose national security information when it suits their political interests or their bureaucratic ambitions.
When asked to conduct a leak inquiry, police do not spare resources, sending platoons to the houses of suspects, and making sure the media is present. In the departments, cops seek computer and telephone records, and give the appearance of attempting to match times and places with similar information obtained properly, or by subterfuge, from journalists or suspected intermediaries. This is often done not so much with a hope of defeating journalistic counter-security but to frighten off or deter some who might be tempted to leak.
The Australian national security establishment is fiercely against any public interest defence for leaking, even when the leak is about clear iniquity. It disputes that an individual (or for that matter a judge) can decide where the national interest lies or give any sort of blessing to disclosure whose only vice is to cause official embarrassment or show perfidy or misconduct. The only protection of the public interest, supposedly, lies in the discretion of the attorney-general to initiate or stop prosecutions for offences regarded as absolute ones.
And to reinforce the point, the national security establishment, particularly that centred in the attorney-general's department, insists that prosecutions must take place in almost absolute secrecy, so that its judgment cannot be second-guessed by the public. One never has to search hard for the authoritarian personality in the worlds of security and intelligence, but that some of the most draconian have originated in an agency otherwise supposed to be devoted to freedom under the law is amazing. That the national security operations and advice of this agency are not subject to the few minor checks and balances imposed on other parts of the security establishment is, of course, no coincidence.
The pity of the outcome of the Collaery case is that it will not lead to any review, public or private, of what happened. Not into the bugging of the cabinet room, or to the rationale behind it. Not into the determination to "get" Witness K and Collaery. Or the efforts to have them tried in a secretive manner incapable of rendering justice or a fair verdict, because all discretion was taken from the courts.
Likewise, Australians must await an exceedingly long criminal investigation into our Afghanistan war crimes. Justice demands a certain silence to permit fair trials. Only after trials, if they occur, can we confront the political and military misjudgement and mismanagement, and the cowboy tactics carried out in Australia's name a decade or more ago. Some with a lot to fear are already calculating a withering of the will to see the investigation through to the end. Political opportunism will make the cause of justice for victims seem to be vindictive and unpatriotic. We owe it to the courage of people like McBride that this is not allowed to happen.
- Jack Waterford is a former editor of The Canberra Times and a regular columnist. email@example.com