This speech was delivered at the Sydney Human Rights Law Center Dinner - 27 May, 2016
Ladies and Gentlemen, it is a great honour to be speaking to you tonight, though I’ve got to admit that I’m more than a little intimidated to be filling in for Maina Kiai – a wonderful intellect, and an extraordinary campaigner for human rights who I know well from my time in Kenya. Maina is one of the most courageous advocates I’ve ever met, and I was looking forward to talking to him in Brisbane at an event that the Human Rights Law Center was organizing. I’d like to take this opportunity to wish him all the very best, and I hope you won’t be disappointed…
When I was thinking about what to say this evening, I found myself in a bit of a quandary, because as the powerful report that the Human Rights Law Center released earlier this year makes clear, we are back-sliding on our protection of some fundamental human rights, and in ways that I think are quite alarming. The trouble is that you are not your average audience. In fact, as audiences go, it doesn’t get much more intimidating than you lot. Collectively we’ve got some of the sharpest minds in law, advocacy, and academia here, and so I doubt anything I say tonight is going to be new to you. And yet, it seems to me that in the debate around human rights and national security, we are losing sight of some pretty fundamental issues. I hope you will bear with me as I walk you through what I think those are.
Although the HRLC report doesn’t say it explicitly, it seems clear that one of the biggest issues is the attempt by the government to shore up national security in the face of perceived threats, whether it is Islamic extremism, environmental radicals, or an invasion by immigrants. I don’t want to suggest for a moment that the threat isn’t real, and that we don’t have a problem. But being tough on crime is the easiest sell in politics now, and God forbid if you open yourself up to accusations about being weak on national security.
But here’s the paradox that I am afraid we are missing in all these arguments about national security.
The human rights that governments both state and federal has been chipping away at – the right to free speech, the right to privacy, the right to freedom of association and protest – are all foundational rights that underpin the way our democracy works. Freedom of the press, protection of whistleblowers, the public’s right to know have all taken hits over the past few years. Yet they are fundamental reasons why our country has been one of the most stable, the most peaceable, the most prosperous and successful on the planet.
To try to make us safer by undermining the system that has made us safe in the first place to me just doesn’t make a lot of sense.
Lets have a look at civil society and advocacy groups for example. The reason they exist is to put a thumb on the scales as a counterweight to the power of governments, corporations, and lobby groups in favour of the far less powerful individuals that they speak for. We have women’s rights groups, disability support services, organizations that speak up for the homeless, or aborigines, or refugees, or the environment or the poor…
The Senate Legal and Constitutional Affairs Committee recognizes community organisations as “an invaluable source of information for government to make informed and balanced policy decisions.” The Australian Law Reform Commission relies on community organisations to present both the evidence and ideas for law reform. Its president Professor Rosalind Croucher said “NGO contribution to the Law Reform Commission’s work forms part of the evidence base and the ideas that we rely on. We rely in large part on community legal centres and NGOs to filter and consolidate on-the-ground experiences.”
The Australian government knows this well. Much of its foreign aid is delivered through NGOs because they tend to be transparent, efficient, independent of governments, and do what they promise.
And in 2010 the High Court ruled that as long as any advocacy that charities do is in line with their mission, it is a vital part of political communications, and so crucial to the health of our constitution.
And yet as the HRLC report points out, we have seen the Australian Government and some state governments trying to suppress criticism from community organisations using a range of tools including restrictions on funding that encourage self-censorship. The federal government has cut funding to the Refugee Council after it criticized the government’s policies. There have also been cuts to Homelessness Australia, and the National Congress of Australia’s First People’s. Elsewhere, there have been funding agreements and restrictions that explicitly stop community groups and legal centers from engaging in advocacy. I can understand why it seems perverse for a government to feel that its wrong to give money to an organization that is attacking its policies, but being challenged and criticized and engaged in argument is all part of healthy democratic debate, and the way we come to the most appropriate policies for any given problem.
If those groups are such an important counterweight to government overreach, why then do we have a parliamentary inquiry that’s threatening to remove the charity tax concessions of outspoken environmental organizations or cutting funding all together? We all have a right to live in a healthy environment; we all want clean air and water, and seas and forests that will survive beyond our kids. And yet we are undercutting the ability of those groups to speak forcefully and defend those rights. Governments have sought to make the distinction between groups that do environmental work on the ground - which they will fund - and those that engage in political activism, which they won’t. And yet as the Australian Conservation Foundation has argued, surely it is far better to advocate and lobby for environmental protection before the damage is done, than go in with a mop and bucket to clean up the mess afterwards.
Some of this might all look a bit inconsequential, but I have to tell you that it looks disturbingly similar to what I’ve seen in far more draconian parts of the world like Ethiopia where there is anything but free democracy. In 2009, the Ethiopian government passed a law that radically restricted NGO fundraising activities and operations. The government forbade NGOs from engaging in anything it deemed to be political activities, whether it was lobbying or criticizing or commenting on government policy. It imposed strict requirements for registration, including asking charities and civil society organizations that received foreign funding to get a letter of recommendation from the Ministry of Foreign Affairs.
I’ve reported several times on aid agencies who have been forced to submit to rules that forbid any form of advocacy what so ever, effectively silencing the only organized groups that speak up for the poor and homeless, for marginalized indigenous people, for the environment, for human rights, against corruption and so on.
Before 2009, there were 3,822 registered civil society organizations in Ethiopia. Now a local register of aid groups counts around 1,500. I’ve seen the way that has created space for human rights abuses, for clamp-downs on the political opposition, for silencing dissent, and for projects that are having catastrophic environmental consequences.
I am not suggesting that Australia looks anything like Ethiopia – clearly it doesn’t. But we need to understand the impact that restricting the work of NGOs and civil society groups has on the way democracies work. And believe me when I tell you that it isn’t pretty. Ethiopia is a beautiful country that has made great strides in recent years, but politically, I don’t think it is a direction that any of us would like to move towards.
And then there is what I think is the most fundamental right of all – the one that underpins all others. If you think about almost all the restrictions I’ve just been discussing, you’ll see that in essence, they are about freedom of speech – the right to self-expression. Without that, you can’t advocate or organize. You can’t protest. You can’t hold free and open debate.
Mahatma Gandhi understood both the importance and the power of free speech.
Without it, Gandhi would be unknown to us. He would never have launched his newspapers. His voice would have been rendered useless. The power of his words would have evaporated.
Gandhi understood that when he began his newspaper career in South Africa. The papers became a tool that helped him inform the Indian community, as a way of encouraging debate, and most crucially, as a way of challenging and questioning the Apartheid state. But as an editor he also understood the power of the media, both as a democratic tool, but also as a destructive force.
Here is what Gandhi said about Journalism: "The newspaper is a great power, but just as an unchained torrent of water submerges the whole countryside and devastates crops, even so an uncontrolled pen serves but to destroy.”
I know there are a lot of people who’d agree with that sentiment, and in particular a lot of politicians who believe that an untrammelled press is more dangerous than it is helpful, particularly at a time of conflict.
But then Gandhi went on: “If the control is from without, it proves more poisonous than want of control. It can be profitable only when exercised from within.”
Here Gandhi is echoing the words of another great thinker – the French philosopher Albert Camus who said, “a free press can of course be both good and bad. But a press that is not free can never be anything but bad.”
So, lets see what’s happening here. There are several pieces of legislation introduced by the Australian Government over the past few years that all seriously undermine media freedom in ways that I don’t think have been properly understood.
The first was section 35P of the ASIO Act — the new section that deals with the disclosure of information relating to Special Intelligence Operations, or SIOs. As many of you know, that prohibits reporting of any undercover operations that has been designated as an SIO. No responsible journalist wants to expose an ongoing operation, or put security agents at risk and I don’t know of anybody that actually has, but the new law goes far beyond that. The 35P offence carries a five-year gaol term if we ever report on an SIO. It’s double that for “reckless” unauthorized disclosure. And because there is no time limit on an SIO designation, you can be imprisoned for reporting on one regardless of how far in the past it happened. That’s despite the fact that reporters will never know what operations have been designated an SIO because that little detail is also secret. So simply looking for information about the work of the security services runs the risk of breaking the law and landing you in prison.
The second piece of legislation is the Foreign Fighters Bill. The killer line here is the new offence of “advocating terrorism”. The media union – the Media Entertainment and Arts Alliance – argues that it suppresses legitimate speech and advocacy, but the MEAA is particularly worried that it could include news stories that report on banned advocacy or even fair comment and analysis.
The third legislative tranche was the Data Retention Bill, which as you will recall, requires telecommunication companies to keep metadata for at least two years so that it can be accessed by a variety of agencies, including security organisations and the police. The problem for journalists is that gives the authorities both the tools and the legal cover to explore their contacts with sources. The government has introduced a fig leaf protection that establishes public interest advocates who are supposed to help judges decide whether to issue a search warrant to investigate a journalist’s data, but the journalists themselves won’t be consulted because the whole process is done in secret. And anyway, there is no provision requiring the authorities to seek a warrant for a journalist’s sources. If you’re a civil servant and you have information on some misdeeds within your department, and decide that you have a moral obligation to expose it, simply picking up the phone and calling a newspaper makes you a potential target of the security services. It makes confidential whistle blowing almost impossible without risking a prison term.
The Border Force Act goes even further. It explicitly mandates prison for any health worker who speaks out about abuses in detention centers. Peter Dutton has implied that the doctors who’ve complained about it are overreacting.
The Government keeps claiming that none of these measures are directed at silencing the media or shutting down whistle-blowers. That might be true, but each in their own way has a corrosive effect on the ability of journalists to do the job that basic democratic theory demands of us. How can we, the public, keep track of the government’s security policies – surely one of the most critical areas of the government’s work – when the media can’t report on abuses of those policies or their consequences for fear of winding up in gaol? How can we have a rational public debate about what constitutes Aussie values, when we can’t quote people who hold views from across the social and political spectrum? How can we encourage insiders to blow the whistle on government misdeeds when we can’t ever guarantee that our sources will remain safe?
This is not a hypothetical problem. Earlier this week, The Guardian ran a story about Doctor Peter Young - a psychologist who disclosed the medical records of Hamid Khazaei, an asylum seeker on Manus Island who died from septicemia following a skin infection on his leg. According to the Guardian, the Australian Federal Police compiled hundreds of pages of investigative notes and reports about Dr Young after the ABC and The Australian both published reports based on his leaked documents.
Dr Young only discovered the investigation after he used the Privacy Act to request access to the AFP files on him.
The heavily redacted files offer only a small glimpse of the investigation, but they do say that Young was a suspect because of his criticisms of the immigration department in its handling of asylum seeker medical care.
And although it’s not clear that the police searched his metadata, one note said “Dr Young’s phone did not identify contact with any media outlets or journalists during the period surrounding the publication of the media articles.”
Then there is Paul Farrell – the Guardian journalist who has done some brilliant work on the asylum seeker issue. He was the reporter who revealed how far the Australian navy had gone into Indonesian waters without permission, to turn back a boat with refugees. He too has become the subject of an AFP investigation into the sources of that leak.
And what about the AFP raid on the Labor Party’s offices in Melbourne to get to the bottom of the NBN leaks.
In all of those cases, it seems hard to justify the federal police’s involvement on national security grounds. And in all three cases there seems to be very legitimate public interest defense. In each case the government insists they are simply enforcing the law with no political agenda, and yet the uncomfortable conclusion must surely be that the law is being used to silence critics of the government or to hide embarrassing or damaging information.
The combined impact might not be immediate or immediately obvious, but in an eloquent speech at the Melbourne Press Freedom Dinner last year, Laurie Oakes argued not only that those new laws seriously damage our democracy; he said the media its self allowed them to pass without seriously interrogating the impact that they’ll have on our work.
I know everyone in my business is struggling to survive in the face of the digital onslaught, and to stay afloat we’ve seen a rush to more tabloid and more partisan reporting, but I think we have done both ourselves and the country a disservice by not speaking out more robustly about these issues.
This brings me to the other key point I want to make – the way that fear is being used by governments and, sadly, also by my own industry, to facilitate and support that erosion of free speech, and of human rights more broadly.
Over the past few years, two British figures – one a journalist and the other an academic – have spoken quite forcefully about the politics of fear.
The journalist Adam Curtis produced a series of documentaries called “The Power of Nightmares”. In them, he argued that there are two types of politics. The first is the politics of aspiration, where a leader outlines an idealized, utopian vision for his country, and promises to fix all that is wrong. Barack Obama with his soaring rhetoric and the slogan “yes we can” was a classic example.
But then there’s the other kind of politics – the one where a leader points to all manner of threats, both real and imagined, hyping up the risks to jobs, the economy, the environment, national security, your health or the water, and promises to fight them off and keep us all safe.
No prizes for naming the American presidential candidate whose been doing a lot of that lately. But here’s the thing – the extraordinary and alarming rise of Donald Trump underlines the point Curtis is making in the title of his documentary series. It is the power of nightmares.
The elevation of terrorism into the biggest threat to civilisation clearly provides a lot of material for scripting the politics of fear - but the script is hardly original. It has been recycled in different forms for decades. After the Second World War there was a continuous promotion of fear of the 'other side'. Fear of communism underpinned Cold War ideology, with periodic outbursts of fear of crime, immigrants or nuclear war.
I’m not suggesting that there is nothing to fear. That would be just plain naïve and silly. But equally, to suggest that we face an existential threat from terrorism is to equate it with the Soviet army or the German military machine, and that frankly seems like a very long stretch to me.
And this is where the academic Frank Furedi has some insightful points. Furedi is professor of sociology at the University of Kent. He argues that the prevalence of scary stories about terrorism, or illiterate immigrants who’ll either take your job or take your social security cheque, or greenies who’ll destroy the economy, or the mines that will destroy the ecosystem exposes a society that feels deeply uncomfortable with itself. Furedi believes the cumulative impact is to transform fear into a kind of cultural lens through which society makes sense of itself. Fear is rarely about anything specific - it is about everything. The culture of fear is underpinned by a profound sense of powerlessness, a diminished sense of agency that leads people to turn themselves into passive subjects who can only complain that 'we are frightened'.
And in THAT environment, we are willing to accept all sorts of restrictions on human rights largely without complaint, because it will somehow make us “safer”.
In a Furedian reading, even I’ve been guilty of using this culture of fear, by turning something scary into yet something else that’s scary. It is so ingrained in our psyche that I wasn’t aware of it until I took another look at my earlier remarks… Remember, I warned that the in the process of chipping away at human rights, we are undermining our social and political stability, and making us less safe.
And here is where I have to rather shamefully admit that our whole media industry has become addicted to the seductive, commercial appeal of fear.
Since I got back to Australia I’ve been watching the news of course, and I have been frankly shocked by the number of stories about house fires or murders or shootings. Every single news bulletin is a rundown of local crime and human catastrophe. Now, it has occurred to me that if these things are actually so infrequent that they justify making them lead story in a TV news bulletin, then actually that’s very good news. If the US media took the same approach, it would be wall-to-wall violence. The trouble is that the stories are never presented as examples that expose some deeper issue, or used to point to some solution. They are simply there for the shock value, and after months and years of it, no wonder crime is still a big issue, even though we live in one of the least violent places on earth.
And here’s a confession that I’m both proud of and embarrassed about. In my first job as a TV reporter for GMV Six in Shepparton about 30 years ago, I had to get into the studios first thing in the morning, call around the emergency services and present a five minute update in the morning news program about what had happened overnight. One day, I called around and found… nothing. Not a single fire. No traffic accidents. No domestic violence incidents. The ambulance never left its garage.
So, that’s what I reported. I got on air and told all the viewers watching over their morning cornflakes that nothing bad happened.
My boss came in and gave me a solid dressing down afterwards, but I am proud that I did that story.
I’m also ashamed though, because I never did that kind of story again. The non-story story.
Now, what matters for us here, is the way that the politics of fear legitimizes the kinds of attacks on human rights that I’ve been arguing against.
The line that Donald Trump used to kick off his campaign speech – that illegal Mexican immigrants are “rapists” and they are “bringing drugs and crime” and so ought to be sent home, makes great headlines, even if newspapers know it isn’t true. And although plenty of responsible news organizations did the right thing to dig out the facts, it got so much traction that it is now a part of the political discourse. Now all Trump has to do is mention some bizarre conspiracy theory and the papers will fill the front pages with it. Even if it ends up getting debunked, the theory has entered the mainstream debate. And because it is there, imagine how much easier it could to be to pass draconian laws targeting immigrants or Muslims.
Here in Australia, we have bought into the fear of immigration so thoroughly and dehumanized the asylum seekers rotting on Manus Island or in Naru to such an extent that it’s okay to put them into internment camps even though they’ve committed no crime. We have accepted that we don’t need to even put asylum seekers in front of a judge before locking them up.
Think about this. Even the term “asylum seeker” has some how become a pejorative. And yet the term means someone who is fleeing persecution. There are countless international treaties that compel us to give sanctuary for anyone genuinely in danger of being persecuted. Now, I accept that we need to have a debate about how we handle the flow of asylum seekers, but to then accept that its okay to suspend the human rights that we demand for ourselves somehow seems perverse.
Three days ago, the Adelaide Advertiser ran a headline quoting the One Nation senate candidate Steven Burges as saying the state must stop Muslim immigration if its to avoid what it called a “Sydney style attack”. The article never challenged the statement. There was no questioning of the logic behind it, no examination of the underlying assumption that all Muslims must be terrorists.
It’s a great headline but it isn’t good journalism. To be sure, not every news organization left the remarks unchallenged, but the language of fear around terrorism has become so ingrained that news organizations are willing to run those kinds of headlines uncritically.
Now, the War on Terror – and God, do I hate that term – is an impossibly slippery thing to get hold of. We all think we know what it means, but the more you try to pin it down, the harder it is. We are seeing all sorts of legislation aimed at dealing with terrorism, with no real agreement at all on what it is that we are actually targeting. So, in so many ways it has come to mean whatever we want it to mean.
After 9/11, the Worldwatch Institute in the United States issued a statement entitled 'The Bioterror In Your Burger' which argued that while past attempts to clean up America's food chain had 'failed to inspire politicians', a patriotic demand for homeland security could 'finally lead to meaningful action'. The Detroit Project, a campaign started by Arianna Huffington of the Huffington Post, and Americans for Fuel-Efficient Cars, links its campaign against sports utility vehicles with the war on terrorism. They argue that Americans need to free themselves from the nations and terrorists holding them hostage through their addiction to oil.
Let me give you another example that I know rather well. In Egypt, the government has redefined “terrorism” to include the party that in most democratic systems would have been called “the opposition”.
When my two colleagues and I were arrested two and a half years ago, we were charged with being members of a terrorist organization; of supporting a terrorist organization; of financing a terrorist organization and of broadcasting false news to undermine national security. What we were actually doing was regular, common or garden reporting, covering the unfolding political struggle with all the professional integrity that our imperfect trade demands – and that included reporting that was both accurate and balanced. And in this case, balanced reporting involved interviewing members of the Muslim Brotherhood, who only six months earlier had been ousted from power after forming the country’s first democratically elected government.
I couldn’t have objected to being imprisoned if we had actually committed some offence; if we had broadcast news that was false, for example; or if we really had been members of a terrorist organization. But at no stage in the trial did the prosecution present anything to confirm any of the charges. This wasn’t about what we had actually done, so much as the ideas we were accused of transmitting.
Egypt has since gone on to pass a new law that makes it a criminal offence to publish anything that contradicts the official version of a terrorist incident. If you check the facts, discover that the government has been trying to cover up some inconvenient truths, and publish what you know you can be hit with a fine equivalent to $50,000.
Not long before we were arrested, Egypt convicted 43 aid workers including 16 Americans of working illegally and sentenced them to between one year suspended, and five years. The aid agencies they worked for included the National Democratic Institute and Freedom House, both funded by the US government. Their trial followed a row over new legislation that gave the government in Cairo control over their work.
But in case you think this is happening in places with less developed democracies, think again. In the UK, the ruling Conservative Party has been trying to introduce what they call Extremism Disruption Orders. These will restrict the movement and activities of people the Government thinks are engaged in "extreme activities", even if they haven’t broken any law. People who have committed no crime could still be banned from speaking in public, from taking a position of authority or restricted from associating with certain individuals simply because they hold views that run counter to what the Government thinks are “British values”, whatever those are.
The Guardian recently reported that the legislation has been held up over the problems of drafting a legally sound definition of the word “extremism”, but let me give you a passage from one article called “Shaking the Manes” that I’d wager would quite possibly have the British attorney general reaching for an EDO.
The author wrote “no empire intoxicated with the red wine of power and plunder of weaker races has yet lived long in this world, and this … “empire” which is based on organized exploitation of physically weaker races of the earth and upon a continuous exhibition of brute force, cannot live if there is a just God ruling the universe... It is high time that people were made to realize that the fight … is a fight to the finish”.
Guess who wrote that. It wasn’t an Islamic State commander or a Taliban leader or some radical preacher. It was Mahatma Gandhi back in March 1922, calling for an end to British dominion over India. We all know Gandhi’s unshakeable commitment to passive resistance and non-violence, but a prosecutor wanting to silence dissent could twist phrases like “the empire cannot live” or “the fight is a fight to the finish” as a call to arms, and put the author in prison. Well, guess what. The prosecutor did. Gandhi was convicted on charges of sedition and sentenced to six years although he was released after two years on health grounds.
Ladies and gentlemen, in my view, the slippery problems around defining the war on terror, combined with a cynical use of fear whether by politicians or we the media, is creating an enabling environment that gives governments the space to chip away at the very principles and institutions that have helped make Australia such a successful democracy.
Let me say this again – I am not suggesting we are living in a dictatorship or sliding towards a state that looks like North Korea. But I worry that we are missing some of the lessons in places where I’ve worked, like Rwanda or Hungary or Venezuela. There, they carved out their independence with strong constitutions with all the rights and protections you’d expect, but over time human rights have been slowly eroded to create states that look much more like dictatorships than democracies. That’s where we need to look if we want some idea of the direction we are moving.