A balancing act between public interest and national security

Amidst conversations around the recent ‘AFP raids’, we must be reminded of the delicate balance between public interest and national security, as well as the roles and responsibilities of government officials and news outlets, Jacinta Carroll writes.

Coverage of the recent raids conducted by the Australian Federal Police on ABC Sydney and a News Corps columnist’s home has been saturating the media. And this has been accompanied with substantial discussion around press freedom.

But one key issue has been missing from the conversation: a clear understanding of what was happening, and why, from a security perspective.

The most important aspect to note is that the search warrants were in relation to two separate investigations about government officials allegedly stealing classified information and ABC and News Corp then publishing it.

Leaking secrets has been a crime in Australia for more than a century. Indeed, this was included in the original Commonwealth Crimes Act 1914, and is also considered a crime in other liberal democracies. Even in strong democracies such as Australia, it’s understood that, in the national interest, some things must remain undisclosed to the public.

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While the legislation has been updated in the intervening years, the basic crime has not substantially changed. Contrary to some recent reporting, it has not been introduced or seriously ratcheted up in recent years. And as the AFP has confirmed, the crimes being investigated are not related to last year’s foreign interference laws.

Investigations to date have led to the prosecution of one of those alleged to be responsible. A former Australian Defence Force (ADF) lawyer allegedly stole classified documents about existing ADF investigations into alleged misconduct by special forces, and passed this on to ABC journalists.

It is important to note the documents leaked were of inquiries already initiated and undertaken by the ADF. While there is clearly a public interest in possible crimes committed during military operations, it’s not clear why the individual chose to leak information to the media when internal action was already underway.

In the matter of News Corp publishing documents belonging to the Department of Defence and the Department of Home Affairs on the role of the Australian Signals Directorate, it’s not yet public who stole the documents, and it’s likely the search warrants served are related to progressing this investigation.

Both matters raise the questions of these individuals’ right to choose to break the law by leaking this information, and whether they were in a position to truly judge the harm – even if it was unintended – of their actions.

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Some media commentators have also claimed that there was no security reason for the information to have been classified.

However, they have neither the authority and expertise nor enough information to make such claims. The same goes for most officials with access to separate and various parts of the classified information, but who nevertheless lack the full picture.

Officials across Australian government agencies have privileged access to a range of such information. This not only includes security information, but details on personal tax, Centrelink, criminal, and other records as well.

Every person who is granted a security clearance is formally educated and regularly updated on their responsibilities in accessing sensitive information and handling it appropriately. They are made aware that they only have access when it is necessary to their current role.

They also formally undertake to not releasing classified information – even if they believe it should be public. This leads to another issue in the current debate: in Australia, is there a need to go to the media to raise issues of concern?

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As every Australian government official and contractor knows, there’s a range of lawful ways to raise ethical or legal concerns – both within government agencies and to independent external authorities.

Like their fellow citizens, Australian government officials and service providers share the expectation that the government and its agents will behave lawfully and ethically, and that there are ways to make sure this occurs.

This is why the Public Interest Disclosure (PID) regime exists – ensuring that any issues can be raised without harmful repercussions for the person raising concerns. Any issue raised must be acted on, and advice provided back to the person who raised it.

And if an individual isn’t comfortable with the PID regime, there are also Commonwealth, state, and territory Ombudsman offices, as well as agency-specific oversight bodies such as the Inspector General of Intelligence and Security. It’s not clear whether these avenues were used by those who leaked information in the current cases.

These are the laws and regimes that have been established by the democratically elected representatives of the Australian people, and are regularly reviewed and inquired into by these representatives and other authoritative bodies. Key examples include the Australian Law Reform Commission and the Independent National Security Legislation Monitor.

So where does this leave the media? Good investigative journalists in the defence and national security space balance public interest and security every day.

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They also understand they are not above the law. And they do this by actively learning about their particular focus areas and engaging with experts in the area.

They ensure that Australians are aware of important issues without damaging the country’s national interest in the process – as illustrated in the groundbreaking ABC-Fairfax investigation ‘China’s Operation Australia’ in 2017, through which Australians learned of the extent of Chinese Communist Party interference in the country.

But the demands of the 24/7 news cycle and stretched resources means that most journalists and news outlets lack the time and knowledge to make such judgements.

And here, Australian officials rightly question where to draw the line between publishing sensitive information because it’s available and may attract headlines – including dumping masses of information online as seen with Wikileaks – and considered and balanced journalism in the public interest.

At best, making good decisions about national security is complex and difficult for those who are charged with the responsibility and have access to relevant information. For those, however, who lack the knowledge and expertise – and might have other motivations – it’s impossible.