Dear Minister (Redacted): Assange and FOI

On Thursday, the Australian Department of Foreign Affairs and Trade published their answer to a Fairfax Freedom of Information two-fold request on Julian Assange. The first part was for briefings to Foreign Minister Bob Carr about Wikileaks, Assange and Bradley Manning. The second was cable traffic (the kind made freely available by Wikileaks) between the embassy in Washington and the department on Wikileaks, Assange and Manning in the months February to April this year. The aim of the FOI was not to release Assange but to embarrass the government by proving Bob Carr a liar. Fairfax's gotcha today was DFAT’s long-held concern Assange would be extradited to the US was “at odds with Carr's repeated dismissal of such a prospect.” More importanly however, DFAT's heavily redacted response gives much insight into Australian concerns about Assange

The response started with a letter addressed to Carr on March 2. The letter was written by the department’s secretary Dennis Richardson who was also ambassador to the US for four years to 2009.  While this was before the period of Assange’s international infamy, Richardson presumably had some sage advice on how to deal with the Assange dilemma. “Dear Minister” it began followed by five pages all marked “redacted”.  Some tantalising notes were left on the last page. Consider, Stephenson wrote to Carr in note s22.1(a)(ii), on any given day, the department is dealing with around 1500 consular cases. The appendix s22.1(a)(ii) also deals with workload and said consular work was increasingly complex due to the travel behaviour of Australians and the number of cases raised to the media which require ministerial involvement. We don’t know where this was leading as the next page was redacted.

There followed a suggested response to possible questions on Assange lawyer Jennifer Robinson whose name was included on a Heathrow “inhibited travel” list.  This was to confirm events but to deny any Australian involvement or British restrictions on her travel. The problem was caused by “management of Ms Robinson’s check-in” and “inadvertent comments by airport security and other staff”. They said check-in staff eventually cleared Robinson to travel and she boarded the flight as planned. The talking point ended “I hope this will put all the conspiracy theories to rest.”

Those conspiracy theories had to wait for the next page which was redacted. The next point was a problem of Carr's own making. A month prior to becoming Foreign Minister, Carr used his own blog to decry the role of judges as prosecutors in the Swedish legal system as “an outrage by Australian standards”. The possible question was shouldn’t the Government do more to stop him from being extradited there. The answer was whatever his opinions as a blogger, as a representative of the Australian Government, he had to express “confidence in the integrity of judicial processes of Sweden”. 

The matter of a US indictment should only be discussed “if raised”. The response should be that while the US is investigating Wikileaks there was no announcement of any action against Assange and the US has not advised Australia of any such action though “the details of our conversations are confidential”.  Australia refuses to comment on the leaked emails from Stratfor which spoke of the sealed indictment.  Two other issues to discuss only "if raised" were the “temporary surrender” extradition mechanism and the likelihood of Australia extraditing him to the US if he returned here.

The briefing said Assange was welcome home “once international orders preventing his travel have been lifted”. Any extradition from here was a matter for the Attorney-General though Assange could fight such an order in Australian courts. There was also an ambiguous answer to avoid confirming Assange’s eligibility to run as an Australian Senator as “suggested on Twitter”. It was Wikileaks’ own suggestion and while the response was to be handballed to the A-G, Senator Carr’s own opinion was that “Assange has not been charged with an offence in Sweden or elsewhere”.

There follows background on the legal proceedings. British police issued Assange with a European Arrest Warrant in December 2010 which a court found valid two months later. Assange appealed to the High Court which upheld the decision in November 2011. However they allowed an appeal to the Supreme Court on the legal matter of whether a prosecutor was a “judicial authority” who could issue an EAW under UK law. After hearings in February, the Supreme Court has reserved its opinion. If the appeal is successful, Assange is free to walk. If it is unsuccessful, Assange still has one last legal avenue open, the European Court of Human Rights.

The Department said they had spoken to Assange twice by phone, twice in person, facilitated a visit by his mother and had attended all legal proceedings. If he ends up in Sweden, he would probably be kept in detention while any trial was pending. As for the US, there a Grand Jury was deliberating the Wikileaks cablegate affair in secret. Wikileaks was accused of providing a rainbow table to crack passwords in Manning’s pre-trial. After Wikileaks released the Stratfor email, Australia sought clarification on whether there was a sealed indictment for Assange. The request was denied due to the secrecy arrangements of the Grand Jury. 

The secrecy of DFAT files on Assange continued with 10 more redacted pages. There followed a cable from Washington marked “routine, information only”. The cable provided a summary of the Manning case which described in great detail the links to Assange and Wikileaks. These included file-sharing, contact details and on-line chat. Implicit in the cable was that prosecutors were building a case against Assange. 

This possibility was made explicit in another similarly undated “routine” cable which said the US has been investigating Assange for more than 12 months. An unconfirmed grand jury was empanelled in Virginia in 2010 but this has been a Kafkaesque black hole for information with no one involved allowed to talk about it and the US refusing to even confirm its existence. The cable also quotes commentary which suggests a successful US prosecution of Assange would be “challenging and complicated”. Possible charges could include accessing computers without authorisation, theft of US property, disclosing prohibited material or criminal conspiracy to “defraud the US”. Any prosecution would not tackle First Amendment rights even though as a non-American he may not be covered. 

A few more redacted pages occurred before more routine cables.They quoted a Wikileaks press release denouncing UNESCO for banning Wikileaks personnel from a conference about Wikileaks. They pointed out the conference was organised by “Washington insiders, cold war ideological allies (such as Freedom House and the disgraced IAPA) and U.S. mainstream media groups.” When media asked the US State Department, spokeswoman Victoria Nuland said given US’s state of “suspended animation” in UNESCO, she was “not sure we’re going to have much to say about it."

Another cable gave an update on the Manning arraignment. With the complexity of the case of 40,000 documents containing 400,000 pages, it would mean an August start date. Manning would be detained for 800 days by the time it starts. It reported a voice from the gallery shouting “Judge, isn’t a soldier required to report a war crime?” It also reported the president of the Center for Constitutional Rights Michael Ratner’s comment that prosecutors were “bludgeoning Manning to accept a plea where he would then implicate Assange”. 

Then it was back to the leaked Stratfor emails. On 27 February Wikileaks began publishing the Global Intelligence Files based on five million emails from a company called Stratfor which provides subscription-based analysis of geo-political issues. It was a private sector Cablegate which Wikileaks publicised with newspaper partners. The cable did not mention the “sealed indictment” but did say Australia was mentioned twice. The first, an East Asia Monitor Guidance, talked about Australia’s submarine crisis and the second from a “well connected former Senator” discussed Chinese mining interests. 

A cable followed that explicitly mentioned the Stratfor “sealed indictment” email. The email’s author Fred Burton was an ex-deputy chief of US counter-terrorism with “close ties” to the intelligence and government network. The email was not official confirmation and the cable author said Burton might be mistaken due to a draft indictment “commonly used by prosecutors to ‘game out’ possible charges.” Either way the silence of the Grand Jury made everything just speculation.

There was a long explanation why Grand Juries operate in secrecy. It was imported from English law, it protected witnesses, it would lessen the risk someone indicted would flee, and lastly it would prevent someone tried but exonerated from “being held up to public ridicule”. While Assange might have coped with the indignity, it is also designed to prevent “satellite litigation in advance of judgement”. 

More cables discussed new allegations in the Manning case. Firstly, that he provided material assistance to the enemy, Al Qaeda in the Arabian Peninsula (AQAP). It discussed in detail the legal arguments and the media commentary with many saying the case was weak and questioned the benefits to AQAP.  Another cable followed that talked about the “rainbow table” allegation. 

Another one discussed the UN Special Rapporteur on Torture’s report to the UN on Manning (Manning data starts page 74). Juan Mendez said Manning’s detention was punitive but he did not accept monitored access to the prisoner. It had a letter from the Department of Defense to Mendez saying they were satisfied with the detention and had placed him on death watch. 

The last significant cable was about Wikileaks’ request for the US to publicise details of Manning’s court martial. The Center for Constitutional Rights' Michael Ratner said the public had First Amendment and common law rights to access to criminal trials. Ratner quoted Circuit Judge Damon Keith’s dictum “democracies die behind closed doors”. He noted Mendez’s objections and said the public had a “compelling interest” in the Manning case. Particularly Assange had a “unique and obvious interest” and “it appears” federal prosecutors had a sealed indictment against him. 

The last cable in the document about Jennifer Robinson’s flight difficulty was completely redacted. By my counting 39 pages out of 125 were redacted showing Assange has been a major topic of discussion and concern for DFAT. Yet there is much revealing about what is left in. Australia almost certainly knows about the sealed indictment but is content to hide behind legal niceties from confirming it.  This was certainly the take of today’s Fairfax report on the material. The Department as ever played a straight bat. Fairfax concluded with DFAT’s non-response. “A spokesperson for Senator Carr said yesterday Assange's circumstances remained a matter for the UK, Ecuador and Sweden, with Australia's role limited to that of a consular observer.” Carr hopes the convenience of consular observation will keep Australia off the hook as this high-stakes game heads towards a spectacular climax.

Julian Assange - media personality 2010

The Woolly Days media personality of 2010 is Julian Assange. Last year I called it the Australian media personality of the year and gave it to ABC boss Mark Scott. Assange is also Australian but his impact has gone well beyond his native shores and his name and reputation are now household names across the world.

With the possible exception of Facebook’s Mark Zuckerberg, no other person has dominated and indeed changed the media landscape with such effect this year. Assange’s choice of media weaponry, Wikileaks, has been in operation for four years scouring the underbelly of dodgy political and business dealings across the world and putting embarrassing documents onto the Internet for all to see and study. The resulting database was whistleblowing journalism blown out into international proportions and it and Assange were the centrepiece of Iceland’s plans to turn itself into a haven of investigative journalism.

Iceland’s plans revealed in February were the first hint that 2010 was to be a breakthrough year for Assange. Wikileaks took a quantum leap forward in international consciousness when it posted a video in April of US helicopter gunships killing civilian targets in Iraq. The helicopter pilots casually swap conversation before opening fire on what they believed to be military insurgents and who were in fact Reuters photographer Namir Noor-Eldeen and his driver Saeed Chmagh.

The footage entitled collateral murder was an overnight sensation and has received over 10 million hits via Youtube alone. Inscribed with the George Orwell dictum “political language is designed to make lies sound truthful and murder respectable, and give the appearance of solidity to pure wind”, it immediately put the Pentagon on the back foot who launched a massive investigation to find the source of the leak while condemning Wikileaks in awkward language that tried to convey the heinousness of the crime while also reassuring it had no discernable impact.

On 6 July, the US charged 22-year-old private Bradley Manning with disclosing the video. By then, Manning had gotten his hands on even more devastating information. Manning was an intelligence agent for eight months in Baghdad where he got hold of 250,000 secret state department cables from more than 250 US embassies and consulates. Manning told a friend how he did it: "I would come in with music on a CD-RW labelled with something like 'Lady Gaga' … erase the music … then write a compressed split file. No one suspected a thing ... [I] listened and lip-synched to Lady Gaga's Telephone while exfiltrating possibly the largest data spillage in American history." Manning uploaded the copies to Wikileaks where Assange now had to determine what to do with them. They decided on staged disclosure aimed at maximising political impact. They entered agreements with The Guardian, the New York Times, Le Monde, El Pais and Der Spiegel to spread the data in reputable newspapers.

The release was compared to Daniel Ellsberg’s Pentagon Papers to the New York Times and Washington Post in 1971 which outlines the US’s secret wars in Cambodia and Laos. Just as the then-Nixon administration was outraged by what it saw as a gross breach of national security, Barack Obama and his officials led the condemnation of the Wikileaks’ disclosures. Once again the denunciations had an implausible mixture of saying they were irresponsible while claiming they revealed nothing new.

Right-wing hardheads in the US called for Assange’s execution while Pentagon officials searched for criminal offences he may have committed. Assange’s own paranoid lifestyle helped turn him into media darling with his sex life getting as many column inches in the redtops as his whistleblowing. His sex life indeed is proving a weak link as he faces extradition charges to Sweden for rape. The issues his supporters face over these charges has led to an extraordinary campaign called “mooreandme” in which feminists are angry with Michael Moore and Keith Olbermann for the way they have downplayed the charges against Assange.

Meanwhile the US, its allies and sympathetic non-state actors has taken elaborate steps to try to take Wikileaks off the air. There have been denial of service attacks which forced Wikileaks to change its address. In reply, companies such as Paypal and Amazon have themselves been victim of hacking attacks in retaliation for suspending micropayments to the organisation. Yet Wikileaks has survived with multiple mirror sites and a grassroots campaign that has struck a chord with people across the world concerned about freedom of information.

Freedom of Information is a relatively new concept and it is not yet clear how much we want information to be free. As Clay Shirky notes human systems can’t stand pure transparency. In releasing all this information into the wild, Assange is challenge powerful notions of what it means to have secrets. He has turned the read-write-web into a powerful democratic tool though to what ends no-one can really tell yet.

Most importantly of all he has spawned a host of imitators that will ensure the work lives on even if Assange is incarcerated or worse. Copycat sites such as Indolinks (Indonesia), BrusselsLeaks (EU) and Balkanleaks (old Yugoslavia) have sprung up using modern technology to give muscle to the ancient grievance of the beans spiller. The biggest rival site Openleaks       c           wants to be exactly the same as Wikileaks but without Assange's autocratic behaviour, and the rival site "will be more democratically governed.”     They make not like Assange personally but imitation remains the sincerest form of flattery.

Iceland aims to become the Caymans of journalism

A group of Icelandic MPs have launched an exiting new collaboration to turn the country into a haven of investigative journalism. The MPs are collaborating with Wikileaks to amend laws to grant protection for journalists, sources and whistleblowers. The plan would also provide data storage facilities as well as combating “libel tourism”, the practice of bringing defamation charges wherever the law is most attractive for the plaintiff. The intention is to provide a comprehensive Freedom of Information Act, whistleblower and source protections, limited prior restraint, protection for ISPs and protection from the insidious act of “libel tourism”.

The proposal submitted to the Althing (Icelandic Parliament) yesterday asks the government to find ways to strengthen freedoms of expression and information freedom in Iceland, as well as providing strong protections for sources and whistleblowers. The proposal requests changes to law, and an examination of the legal environments of other countries to get a “best of breed” law in freedoms of expression and information. It also recommends the establishment of an international prize to be called The Icelandic Freedom of Expression Award.

The aim is to turn the island nation of 350,000 people into the world's first "offshore publishing centre." According to Mother Jones, the proposals could turn Iceland into the Cayman Islands of journalism. It says the proposal is based on the business model of offshore financial centres like Switzerland, which attracts investors with an enticing combination of low taxes and strict bank secrecy laws. Iceland could be the equivalent for investigative journalists if, as expected, it passes what would be the strongest source protection and freedom of speech laws in the world.

The proposal is the brainchild of the Icelandic Modern Media Initiative which addresses the key issues for freedom of expression in the digital age. The IMMI say Iceland is “at a unique crossroads”. The IMMI is feeding of the sense of change in the electorate as a result of the economic meltdown in the banking sector, in order to prevent it from taking place again. It also quotes Reporters Sans Frontiers who say Iceland dropped from first in the world for freedom of expression in 2007) to 9th last year. “It is time,” say IMMI’s founders, “this trend was rectified”.

The IMMI was drafted with help from Julian Assange and Daniel Schmitt, two of the founders of Wikileaks. WikiLeaks editor Julian Assange has been in Iceland for the past two months, consulting parliamentarians on the project. Assange says Wikileaks has fought off more than 100 legal attacks over the past three years by spreading assets assets, encrypting everything, and moving telecommunications and people around the world. He says the Iceland will adopt the strongest press and source protection laws from around the world.

Assange said the move was driven by Icelandic people who have just suffered the largest economic meltdown of any country per capita in the GFC. He said Icelanders believe fundamental change was needed in order to prevent such events from taking place again including better bank regulation and better media oversight of dirty deals between banks and politicians. He quotes the “libel tourism” of Iceland’s largest bank Kaupthing which brought a successful suit against a Danish tabloid, Ekstra Bladet, in London where the costs of fighting libel is prohibitive. Iceland’s second largest bank Landsbanki also sued a Danish media outlet over its Russian mafia connections. http://icelandtalks.net/?p=471

Icelandic writer and blogger Alda Sigmundsdottir says the aim of the proposed legislation is not to allow people to publish freely any old rubbish and get away with it. “The point is not to make Iceland a haven for tabloids, paedophiles or similar low-level activities,” she said. Sigmundsdottir said the idea was to create a framework wherein investigative journalism and free speech can flourish. “Anything that is illegal will still be illegal,” she said. “The amendments will not change that.

However the Citizen Media Law Project says that while the laws are well-intentioned, they probably won’t achieve much because of the principle that publication happens at the point of download, not the point of upload. It quotes the famous (or more correctly infamous) case of Dow Jones v Gutnick where Melbourne tycoon Joe Gutnick sued Barron's Online for publishing a supposedly defamatory article about him. Gutnick applied the writ in Victoria where only a handful of people read the article but the Australian High Court ruled this was where Gutnick’s reputation was and ruled against Barron’s.

For better or worse, says the CMLP, the poorly thought-out Australian ruling has set the precedent in similar cases around the world since. So while Iceland’s protections will suit Wikileaks they will not be useful for multi-national media companies. Harvard law professor Jonathan Zittrain believes it was unclear how broadly the laws could be applied should they pass. "Unless the executives behind a particular media company are themselves prepared to move to Iceland, I'm not sure how substantial the protections can be," he said. "A state can still demand that someone on its territory answer questions or turn over information on pain of fines or imprisonment."

Freedom of Information session in Brisbane

I went along to a Walkley Foundation Night at the Regatta Hotel tonight to listen to four Brisbane media personalities talk about press freedom issues. The event was moderated by Cathy Border, Channel Ten’s political editor and featured ABC’s Pacific Correspondent Sean Dorney, fellow ABC journalist and state 7.30 Report producer Peter McCutcheon and The Australian’s Queensland political reporter and FOI editor Sean Parnell.

Sean Dorney began the discussion by discussing his recent experiences in being expelled from Fiji. Given that the material is similar to the ground relating to his 14 April expulsion from Fiji, which I covered in his QUT speech, I don’t propose to rehash his comments tonight. However Dorney did have a few important updates. He noted that all Fiji lawyers will be forced to re-register as of the end of June in an attempt to weed out law practitioners unsympathetic to government. Dorney said that Fijian journalists are unhappily waiting for a similar decree to come their way.

Sean Parnell spoke next. Parnell began his career as a photojournalist for The Inverell Times newspaper and then worked in radio and TV before writing for the Courier-Mail for ten years. He is now the Queensland bureau chief of The Australian and specialises in Freedom of Information (FOI) laws. Parnell lamented the gradual dumbing down of political debate and the increasingly strained relationship between politicians and journalists. He talked about the “leap of faith” required to believe the Queensland overhaul of state FOI laws will work.

Parnell lamented how the “spin cycle” made getting even simple information from governments an extraordinarily difficult task. He applauded the John Faulkner efforts at a federal level to reform the FOI laws despite the tight media management of the Rudd Government. Parnell said journalists should not rely on FOI which was “just another tool” to get information out of governments. He also noted that given the usual three month delay between making FOI requests and getting the information means that journalists need to look beyond the news cycle to determine what to request.

ABC’s Peter McCutcheon spoke next. McCutcheon agreed with Parnell that communication between politicians and journalists had deteriorated. He said that whenever he requests an off-the-record briefing on an issue, he has to wait for several weeks and even then all he gets are “weasel words” from a minister. McCutcheon also mentioned how journalists who successfully get FOI data are penalised as they only have 24 hours to use the fruit of their hard work before the same information is released to all other media. Parnell interjected to say that this is the media’s own fault. He used the example of where a media outlet FOI output turns out to be useless, but they use one damning statistic in “paragraph 340” as a lead. Parnell says governments will then deliberately reveal the entire file to show the news lead was taken out of context.

While the mix of Fijian content from Dorney did not always sit well with the FOI message from Parnell and McCutcheon, the session did highlight that Australia cannot afford to be complacent about freedom of the press. As I wrote here a few days ago, governments in Australia employ 4,000 people as part of their PR arm, outnumbering the total of journalists by a staggering four to one. No wonder then, says Peter McCutcheon, whenever he speaks to ministers, all he gets is “a tightly controlled message with not a lot of content”. The wider question then is, if messages do not carry content, what exactly is it they are conveying instead?

Queensland FOI law: for better or worse?

Queensland Government took delivery of a major report today that recommended 141 changes to the state's Freedom of Information laws. The report has far-reaching reforms and would likely lead to pressure on Kevin Rudd to follow nationally. Premier Anna Bligh immediately called the report "a blueprint which could make Queensland the most open government in Australia" and plans to have a new right to information act before Parliament next year.

FOI is already enshrined both national and state Australian law as the citizens right to ask their government about any matter of public interest. Or so it seems. While the core aim of the law is to improve decision making by removing unnecessary secrecy, the intent is betrayed by the word “unnecessary.” This word enables a raft of exclusion clauses to be built into the legislation in order to stunt and protect information flow. This is why today’s FOI announcement in Queensland has the potential to be a truly democratic event. Tim Dunlop called it an “impressive approach to the problem” and agrees with the authors that a new model is required.

Called “The Right to Information” (pdf) the report is a review of Queensland’s FOI Act. The Queensland Government commissioned it late last year as one of the early initiatives of the Anna Bligh government. The government commissioned a three-person Independent Review Panel headed by Dr David Solomon and assisted by Simone Webb and Dominic McGann. Solomon is a former journalist, barrister, and a member of the Australian Law Reform Commission's national review of FOI laws. Simone Webb is a former Deputy Director-General of the Department of Premier and Cabinet, and Dominic McGann is a partner at law firm McCullough Robertson who specialises in government liaison, the privatisation of government corporations and utilities and native title.

The threesome’s June 2008 report is an important and useful primer in FOI. It begins by calling the public interest the central, unifying feature of freedom of information. It then acknowledges the application of the public interest test was a significant weakness in the current law. The balancing act of opposing interests made the test difficult and it was further hindered by the vagueness of what actually is the “public interest”. And of course the test doesn’t even apply to the “exemptions” lucky documents that are automatically barred by the law, preventing all sorts of nasty cabinet documents, Wheat Board shenanigans, and “commercial in confidence” handshakes from ever seeing the musty light of day.

Solomon, Webb and McGann have proposed three key changes to make FOI decisions easier to approve. First they attempt to define public interest factors to make the law more testable. Secondly the decision will be framed so that access is the default position and putting the onus of proof on the person denying the request. Thirdly and most radically, they propose getting rid of the exemptions. Instead, the authors say, each case would be decided individually on a “harms test” to the public interest. These changes are aimed at simplifying the test by “making it more transparent, understandable and credible”. Heady stuff. But will Bligh accept the recommendations?

As a carrot, the authors say the changes would also “simplify the administration of the test” and therefore save public dollars in application claims. Though that might be swallowed up by the number of individual cases going down to the wire on the results of the “harms test”. The other out-clause the authors gave Bligh was a “small number of true exemptions”. These would not have a public interest test applied, because Parliament decided that it was outweighed by other factors.

Therein lies the political reality according to Matthew Ricketson and Rick Snell. In their in their chapter on FOI in "Journalism: Investigation and Research", they wrote how Sir Humphrey Appleby used the term “courageous” when he really meant “suicidal”. Similarly Freedom of Information has become code for government documents that are neither Free nor Informative. The 1994 Sydney Yellow Pages took this to its obvious limit when it listed the NSW example of the legislation as the Freedom From Information Act. Bligh would have been aware of the double-edged sword nature of the legislation when she announced the move. It was her way of showing open-government credentials in the wake of dodgy dealings during the Beattie era. It was also a way of showing that she learned from the Media Tart to oblige the opinion setters in other ways.

But just like Beattie, it is highly unlikely that Bligh wants to wash her government’s linen in public. The government likes the idea of an informed citizenry more than the reality. No government wants the full scale of its decision-making revealed. As Nicola Roxon (channelling Bismarck) observed, media management is like sausage making - “some things you don't want to see behind the scenes”. And Government distaste for this sort of spotlight is usually matched by their bureaucracy. To quote another Sir Humphreyism “surely you can have openness or you can have government, but to have both is a contradiction in terms”. Therefore it is likely the government will keep the shutters up by trumping the public interest with the national interest. Queensland may enact the letter of Solomon’s report, but not its wisdom.

But even that alone will be useful if they succeed in changing the 1992 FOI Act in two other areas. Firstly if it rids Queensland of “conclusive certifications”. At a federal level Peter Costello was notorious for producing these get-out-of-jail-free cards to avoid make a document public. Secondly, if it fixes the time and costs of making an FOI Application. The report says that the present system is a “disaster.” But they make a fantastic recommendation to make sure the agency provide, “as a first response to a request, a Schedule of Relevant Documents and engage the requester to decide which of the documents in the list are really wanted.” Knowing exactly what to ask for will be a massive boost for those seeking information and making the document a charge by page will simplify the cost of FOI. It may even inspire journalists to use this under-valued tool more often. Truth is a good disinfectant.

MEAA annual report on state of Australian Press Freedom

Opening Fairfax Media’s new Sydney headquarters on Thursday, Prime Minister Kevin Rudd promised to usher in a new era of press freedom in Australia. Rudd told the gathering that Labor would honour its commitment to reform Freedom of Information (FOI) laws and to promote a "pro-disclosure" culture across government. There will always be argy-bargy between the government and the press, that's the nature of a democracy," he said. "The key is striking the balance between the public's right to know and the confidentiality needed for important decision-making."

Rudd has his work cut out if he is serious about his intent. On the same day as the Sydney speech, the journalists’ union the Media, Entertainment & Arts Alliance (MEAA) posted their 2008 annual report into the state of press freedom in Australia. Although it found some promising developments over the past twelve months, the report (pdf) found a litany of faults on a range of issues such as FOI, whistleblower protection, and anti-terror laws that together seriously erode the country’s reputation as a robust democracy.

In his introduction to the report, MEAA Federal Secretary Chris Warren took the school report card metaphor saying Australia “could do better” as he hoped for “marked improvement” next year. However he did point to improvements in high profile media cases and the important formation of the Right to Know Coalition which brought together many of the country’s most high-profile media organisations such as News Ltd, Fairfax, the ABC, SBS and AAP. Their independent audit authored by Irene Moss in November 2007 was a damning finding of the state of free speech in Australia being whittled away by hundreds of laws and suppression orders.

Within a month of the publication of Moss’ findings, the country had its first change of government in 11 years. Much of the MEAA’s optimism for the future is based on the promises of the newly installed Rudd administration. Rudd said he wanted to work towards more open government and pledged to introduce measures to foster press freedom. There was also progress on Shield Laws at a state level. However substantial work will need to be done to combat the raft of anti-terror and sedition laws the Howard Government brought in (mostly with bi-partisan support) since 9/11.

The report says that opposition to anti-terror legislation still exist despite an expensive and costly public-awareness anti-terror campaign mounted by the former Government. As Will Anderson wrote in Leftwrites in February this year, the anti-terror laws have resulted in just one conviction despite all the “lofty rhetoric, national security hotlines, adverts and fridge magnets, hundreds of days in court and millions of dollars of public money spent.” The Press Council agrees the laws are excessive and believe they shield government from scrutiny.

The report also criticised the sedition section of the Anti-Terrorism Act (No 2) 2005. Then Attorney General introduced the law saying it would be reviewed within 12 months. That review never occurred. The Right to Know report identified several serious defects in the wording of the law including the imprecision of the word “urge,” the lack of necessity to prove intention of ill-will, the possibility that verbal support for illegal groups is in scope, and its universal jurisdiction. The report is concerned that the new Labor Government has made no effort to have the sedition upgraded or removed since it assumed power,

Protection of whistleblowers is another area of press freedom weakness. The report documented the 2007 case of Allan Kessing who was sentenced to a nine-month suspended jail term after being found guilty of leaking a confidential report on airport security to The Australian newspaper. During Kessing’s trial, his lawyer argued without success hat his client’s disclosure of two classified reports was in the public interest. Similarly Mohamed Haneef’s lawyer Stephen Keim was harassed by federal police commissioner Mick Keelty after Keim leaked transcripts of Haneef’s interview with federal police that undermined the case against him. The anti-whistleblower culture of the Howard government was such that in four years they spent more than 2,100 police hours and $2 million trying to track them down.

The report has also touched on several other key points related to press freedom. They recommended journalist Shield Laws based on the presumption sources should not be revealed. They commented on the excessive prosecution culture that saw the Chaser satirists charged for the APEC motorcade stunt (since dropped) and the charges against the Daily Telegraph for trespassing at Sydney Airport while doing a story on how easy it was to breach security. The report praised the new uniform defamation laws that stop forum shopping but lamented a new ruling in a Sydney restaurant case that established a new category of “business defamation”.

Freedom of Information, Suppression orders and privacy laws are also obstacles for working journalists. To fix these problems, the MEAA and the Right to Know Coalition are expecting big things of the new government’s plans. Called “Government information: Restoring trust and integrity”, the policy released by Rudd and Joe Ludwig prior to the election pledged to bring together the functions of privacy protection and freedom of information in an Office of the Information Commissioner, to preserve the existing role of the Privacy Commissioner and to appoint a Freedom of Information Commissioner.

But Sydney Morning Herald FOI writer Matthew Moore cautioned about the policy’s lack of detail. “The critical issue is when this policy will be enacted,” he said. “Oppositions are huge fans of tough FOI laws but regularly experience a dramatic change of heart the moment the first government limo turns up.” The pressure is now on Rudd to deliver.

Judge orders Wikileaks off the air

A Californian court has ordered a whistle-blowing website to be taken down in a controversial ruling last Friday. Wikileaks.org was ordered off the air by Judge Jeffrey S. White of the Federal District Court following a case brought by Swiss banking group Julius Baer. Lawyers for Julius Baer brought the case to trial after several documents posted on the site allegedly revealed that the bank was involved with money laundering and tax evasion. The bank alleges the documents were stolen.

After an ex-parte hearing, the court ordered the controller of the sites domain name, Dynadot, should "prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court." Wikileaks did not have the chance to address the issue in court. They claim that the order was unconstitutional and said that the site had been forcibly censored. The judge ordered Dynadot to delete Wikileaks.org deleted from the DNS (domain name server) but clearly does not understand how the internet works. Despite the order, the site can still be accessed via the IP address "http://88.80.13.160" at its Swedish hosting site and through mirror sites in Europe that replicate its contents.

The take-down decision has caused uproar and derision in the online community. Writing in the Guardian, Charles Arthur says the decision is a prima facie infringement of the US First Amendment prohibiting the abridging of free speech. Arthur says Wikileaks has annoyed many people with its determination to publish leaked documents. “Finally,” he says, "it properly annoyed someone who had the money for lawyers”.

Duncan Riley at Techcrunch points out that because the material is still available in the public domain, the likelihood is that more people will read the documents as a result of the publicity of the trial than would ever have bothered otherwise. Richard Stiennon at ZDNet says it is an outrageous move by a US court to attempt to destroy a website because of a complaint about a particular set of files. “I wonder how they justify that?” he asked. “Luckily the Internet is made of a series of tubes and the DNS is only a small part of the plumbing”.

Over at their Swedish home, Wikileaks released the trail of correspondence between themselves and Julius Baer’s solicitors. On 15 January, Baer’s solicitors charged Wikileaks of posting content that constituted “violation of trade secrets, conversion and stolen documents by former employee in violation of a written
Confidentiality agreement and copyright infringement” but consistently refused to reveal the name of their client nor would they identify what documents were causing the trouble. After several more days of fruitless exchanges between Wikileaks and the bank’s lawyers, it all went quiet until the ex-parte hearing last week.

Wikileaks was founded in 2006 by Chinese dissidents and by journalists, mathematicians and computer specialists in the United States, Taiwan, Europe, Australia and South Africa. It has published 1.2 million documents and says its goal, is to develop “an uncensorable Wikipedia for untraceable mass document leaking and analysis.” It has published important leaked material from across the world, including the top secret US Rules of Engagement in Iraq and news about Guantanamo Bay officials conducting covert propaganda attacks on the internet.

The Julius Baer story began in 2005 when the bank’s former Chief Operating Officer on the Cayman Islands was suspected of leaking information to the press. Rudolf Elmer is accused of being the source of the information that the bank specialized in hiding and laundering the money of the ultra rich through anonymising offshore trust structures. Wikileaks obtained and published documents related to the Caymans issue. The bank tried to stop Wikileaks publishing the information because of a court case related to the problem in Switzerland which commenced in December last year.

Julie Turner, a Californian attorney who has represented Wikileaks in previous litigation, told Wired she is surprised that the San Francisco court sanctioned such a broad agreement to remove the site. She had been speaking with the bank last month on Wikileaks' behalf when the negotiations fell through. “It’s like saying that Time magazine published one page of sensitive material so (someone can) seize the entire magazine and put a lock on their presses," she says. With Wikileaks making comparisons to the Pentagon Papers and invoking the First Amendment, this judgement is a certainty to be thrown out in a higher court. In the meantime, the Internet makes the law look like an ass.

Media Coalition releases damning Free Speech Report

Earlier this week the Right to Know Coalition released their report on the state of free speech in Australia. The report is a damning indictment of state and federal government policies which deny public access to a plethora of information through stifling legal provisions. The report says “free speech and media freedom[s] are being whittled away” by 335 acts of parliaments, more than 500 legal provisions and over a thousand court suppression orders.

The Independent Audit of the State of Free Speech in Australia (pdf) chaired by former NSW Ombudsman Irene Moss was presented to the Right to Know Coalition on 31 October. Its broad conclusion was that media freedom was diminishing gradually and imperceptibly. The report claimed that many of Australia’s democratic mechanisms were “flawed” and “wearing thin”. It cited poor support for whistleblowers, the lack of journalist shield laws, secrecy provisions in legislation, the “culture of secrecy” in many government agencies and numerous examples of failed or significantly delayed Freedom of Information (FOI) applications.

The report made three key recommendations. It stated the Prime Minister and Premiers should immediately issue a directive to their staff to take the laws seriously, it said that after the election the new government (of either party) should implement the Law Reform commission recommendation to eliminate the insidious use of "conclusive certificates" (pdf) to restrict access, and lastly the government should ask the Law Reform commission to redesign the 1982 FOI Law to bring it into the information age.

The media Coalition have released the document now for maximum electoral impact. The report contained several damning FOI examples such as an April 2005 request for the Defence Department to release documents on Australia’s position on rendition (not yet actioned), the results of opinion polls assessing the success of the workchoices legislation (delayed until after the election on the flimsy excuse that the government wanted to release all its opinion survey data together) and a 1993 application to the Queensland Treasurer for information about Jupiter’s Casino which took 12 years to answer. The high cost of FOI is another failure factor. The Herald Sun recently abandoned its two year campaign to seek federal politicians’ travel information after it was quoted a fee of $1.25 million – 32 person years of work, apparently.

Australia’s Right to Know is a broad-based media coalition formed in May 2007. Its members include most of the power players in Australia’s mediascape. The initial members included News Ltd, Fairfax, ABC, Channel Seven, SBS, Austereo, AAP and Sky News. The group is chaired by News Ltd Australian CEO John Hartigan. The group released a joint statement in May which began by saying the parties had grouped together because they were “deeply troubled” by the state of free speech in Australia. They were careful to say this was not a party political issue and said all parties needed to embrace urgent reform. Their first priority was to audit the state of free speech in the country. They were concerned by the 2006 Reporters Without Borders press freedom index which ranked Australia 35th in the world.

Since the initial statement, Reporters Without Borders have released their 2007 index with Australia ranked a more healthy 12th best. Yet their annual report for Australia did not ascribe any reason for the improvement. Instead it condemned the 2005 anti-terror laws and the 2006 law on interception of communications which increased the risks of the anti-terror legislation being used abusively against the media. The report also remarked on the September 2006 High Court’s refusal to allow a journalist access to documents on the Australian government’s tax policy. It quoted the Australian Press Council condemnation of the decision which it said would give the authorities a “fresh impetus to suppress information that is embarrassing or politically inconvenient”.

The Press Council was a party to that case. The case was The Australian’s FOI editor Michael McKinnon's appeal against Treasurer Peter Costello's refusal to grant access to information on the first home buyer's scheme and bracket creep. The Council stated that in finding that the tribunal did not err, the Court failed to give adequate weight to the aims of the FoI Act, to "extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth". It said the true losers were Australian voters and taxpayers.

The case was a major spur to the setting up of the 'Australia's Right to Know' Coalition. Lucinda Duckett, a News Ltd executive and one of the driving forces behind the coalition, told ABC’s Media Report in May why they were taking action. She said that while she didn’t believe any of the imposed laws were deliberately done out of malice that the 500 legal prohibitions (now confirmed by the audit) on what can be published “form a very dangerous picture for Australia”. She said some of the biggest problems occur at state level. “Because the states are not united on many of their restrictions, and while state borders exist, they don't exist for broadcasters or for publishers, or for the Internet,” she said. “The difficulties we have as journalists, in reporting things that can only go so far and then have to suddenly stop.”

So far, neither the Howard Government nor the Rudd Opposition have made any election comment on the newly released report.

High Court delivers FOI blow

Australia’s Freedom of Information Laws date to 1982. They were drafted by the then Liberal government of Malcolm Fraser and endorsed by Bob Hawke’s new government. However the efficacy of these laws have been brought sharply into question after the Australian High Court (photo credit: airninja pictures) ruled last week in favour of Peter Costello in the case brought against the government by the Australian newspaper. Reporters Without Borders have now called the laws to be repealed. "It is regrettable in a democracy that a government can so easily reject a journalist's request for access to information that is in the public interest," the press freedom organisation said. "It is even more regrettable that the courts uphold the government's ability to evade the need for transparency."

The Australian High Court in a three ( Hayne, Heydon and Callinan JJ) to two (Gleeson CJ and Kirby J) decision rejected Michael McKinnon's and News Ltd appeal in relation to conclusive certificates issued by Secretary for the Department of Treasury under the FOI Act. The majority decided the issue on a narrow and technical consideration of the requirements for section 58. The majority judges were content only to require that the government demonstrate that any documents covered by a conclusive certificate was supported by reasons that were reasonable and rational as distinct from something that is irrational, absurd or ridiculous.

The ruling is an effective death sentence for the ground-breaking FOI legislation. According to the Sydney Morning Herald the decision is an enormous setback to informed debate, and further tips the scales towards unaccountable ministerial power. The case dates to 2002 when Treasurer Costello refused the requests from The Australian's FOI editor Michael McKinnon to reveal what Treasury officials knew about income tax "bracket creep" and possible rorts in the first-home buyers scheme. Costello's refusal had ample precedent on both sides of federal politics - notably from Paul Keating who, as treasurer, had rejected FOI applications from his then Liberal shadow, John Howard. McKinnnon pursued appeals, with the backing of his publisher, News Corp, and later with the support of John Fairfax, in the Administrative Appeals Tribunal, the Federal Court, and now the High Court.

The dissenting Gleeson-Kirby view emphasised that the FOI law asserts a general right to information by Australian citizens, limited only by exceptions necessary to protect vital public interests. In their view, ministers had to provide plausible arguments against a presumption that disclosure was in the public interest. However the majority view gave more weight to the caveats and cautions in the FOI law. They upheld the Administrative Appeals Tribunal decision backing Mr Costello's refusal. The three judges held that the tribunal did not have the power to substitute its opinion for the minister's about whether disclosure would be contrary to the public interest or to assess for itself what the public interest required. This was "a matter as to which a responsible minister has the primary and, as will appear, almost the final judgement by reason of other relevant statutory language". Mr Costello has pointed out FOI laws can be a potential obstacle to public servants giving fearless and candid advice.

The end result is a legal bill of over $1 million for News Ltd, and a large and simple loophole for governments to avoid processing FOI requests. Labor's public accountability spokesman Kelvin Thomson said the court's ruling was a "hammer blow" to accountability. Labor have since pledged to change FOI laws to prevent ministers from hiding sensitive documents. Prime Minister Howard ridiculed this pledge as hypocritical and unbelievable. "When they were in office they were up to their armpits in the use of conclusive certificates and I just don't believe them” he said today.