Sorting right from wrong, Australian independence, and balancing democracy

Speech by Bill Rowlings* CEO of Civil Liberties Australia given at a forum at Manning Clark House, Canberra, on 13 October 2019 in relation to ‘Whistleblowers, media freedom, and your right to know’.

I acknowledge our Indigenous elders, and I’d also like to acknowledge some elders of Civil Liberties Australia who have died this year. You may know some of them: Jeff Miles, who was Chief Justice of the ACT; Dr Helen Wiles, the ACT’s first female pediatrician; Keith McEwan, who came to social justice through the Communist Party, and Howard Carew, a prolific letter writer to the Canberra Times, who died earlier this month.

I’ll speak today about three things:

  • Whistleblowers, right from wrong, and the need for an inquiry into bugging East Timor,
  • The mainstream media today, including press freedom and press responsibility, and
  • Rebalancing power in Australia’s democracy.

…then, in summary, I’ll suggest four dot point priorities for action.

I’d like to open by comparing and contrasting the cases of Witness K and Bernard Collaery, with that of David McBride, the Defence and Afghan War whistleblower.

Left: Bernard Collaery and Jack Waterford, at the Manning Clark House forum,

The government is a stickler for the Rule of Law… when it suits them, of course, not all the time. But they have no regard whatsoever for another rule, one that you and I, and most Australians and other world citizens, live by every day.

It’s what I call the Rule of Morals and Ethics (or RoME for short). The Rule of Morals and Ethics is something we all grow up with. We know, from our earliest days, that we shouldn’t steal from our neighbour. Thou shalt not steal – it’s biblical.

It’s also a Rule of Law, and a Rule of Morals and Ethics which is well understood by every Australian…from seven-year-old children to adults. But apparently, it wasn’t understood by the Australian government team negotiating an equitable share of Timor Gap oil deposits with the East Timor government.

Now, it’s also a Rule of Law, and a Rule of Morals and Ethics, that Australia’s soldiers should not – as is alleged – shoot dead any innocent and defenceless Afghani prisoners.

The government is prosecuting Defence Dept lawyer David McBride for his revelations in that space. His whistleblowing has led to numerous TV exposes about what actually happened (including recently on 60 Minutes), to newspaper features, and to radio interviews.

They have also led to two full-on inquiries which continue to be under way:

  • one by Defence, that has been going now for about four years, and
  • one by the AFP, apparently ongoing for a couple of years.

Witness K and Collaery

But then, we come to Witness K and Bernard Collaery, who are being prosecuted by the government for allegedly revealing details of when ASIS bugged the negotiation room of the East Timor government, so that the Australian side knew exactly what the East Timor position would be at any time

The absolutely stand-out issue in their case is that there is no major inquiry into the genesis of the K and Collaery cases.

I believe that about 90% of Australians, at least, would say that our bugging of East Timor was totally amoral and completely unethical. So who was behind it? Who ordered ASIS to do the bugging? Which Ministers of the Crown, and who in the AG’s Department, and/or in Foreign Affairs and Trade, was involved, and why? Were private firms involved?

In truth, Australia has had major, endemic problems for 15 years in the trade area.

There was the Wheat Board bribery issue in the Middle East around 2005. We were giving kickbacks to the Iraqi regime of Saddam Hussein. Around the same time, we had the start of the Note Printing and Securency fiasco, where Australians were again involved in bribery, including by entities under the control of the Reserve Bank of Australia, and also involving trade issues.

Guess what? There were calls at the time for more adequate protection for whistleblowers, and for a National Integrity Commission. Guess what? We have achieved neither.

We need a full public inquiry to establish:

  • what IS the Rule of Law in this context, and
  • what IS the Rule of Morals and Ethics in relation to Australia’s trade, and
  • is ASIO or ASIS permitted to do, in future, what they have done in the past?

If we don’t sort out these things, the issues like how Australia bribed and/or bugged and/or cheated and/or lied will come up again…probably roughly every 5-10 years based on past form.

Importantly, we need to expose the hypocrisy of those trading and doing business in our name, in the name of Australia.

Hypocrisy

In fact, hypocrisy by the Executive government gets worse, almost daily.

For example, on Friday (11 Oct 2019), Home Affairs Minister Peter Dutton accused the Chinese Communist Party of behaving in ways that are “inconsistent” with Australian values. He warned that Australia would “call out” China for three things:

  • foreign interference in universities,
  • cyber hacks, and
  • theft of intellectual property.

I’d like call out Mr Dutton to explain to him that bugging East Timor to find out their negotiating position is actually stealing their intellectual property.

The media…press freedom rights, and responsibility

Turning now to the press freedom issues, the mainstream media is in sharp decline, and has been for decades, in two ways:

  • financially, in terms of profits, and
  • in number of journalist staff.

Fairfax – at least until the recent merger with Channel Nine – has been pretty true to type, in being a traditional newspaper. That is, it has provided de facto opposition to any government, Coalition or Labor, with a series of exposes and revelations.

But The Australian has, over the past couple of decades at least, and until very recently, sold its soul.

When I worked on it – I admit it’s about half a century ago – it was independent. It only took a stance at election time, when traditionally newspapers used to urge a vote for one side or the other.

But, over the years since Rupert Murdoch became an American, and then a political cheerleader for the benefit of his own businesses, The Australian went into independence decline.

When Murdoch and the Australian started out, printing here in Canberra in 1964, he was a true newspaperman. Mind you, he took sides in election campaigns, which was and is his right as proprietor.

During the 1975 election, when Murdoch campaigned in editorials against the Whitlam government, the newspaper’s journalists went on strike over editorial direction.

Can you imagine the Oz’s journos going on strike now over the boss’s editorial direction, or political position? The Australian is now identified with one side of politics only.

But, even more importantly, The Australian long ago stopped fighting for the core newspaper activity that has traditionally been at the heart of “keeping ALL the bastards honest”.

That is, constantly campaigning for all freedoms, including those of freedom of speech, freedom of association, and freedom of assembly.

In passing, it is very hard to understand how a mainstream news outlet, supposedly representing the voice of the people, would not campaign for a national Bill of Rights.

The Australian…and opposition to the ABC

Only in the past couple of months, when News Corp’s own Annika Smethurst’s house was raided here in Canberra, did The Australia become prominent again in standing up for the one human right and civil liberty that most matters to it, freedom of the press.

For nearly 19 years, since 9/11 (that’s 11 September 2001 in English), Civil Liberties Australia, other civil liberties and human rights groups – and, in recent years the Law Council of Australia and others – have been saying the raft of laws passed by both Labor and Coalition governments have changed the nation, very much for the worse.

But The Australian has been noted by its absence of support.

And other media have been lukewarm at best in holding governments to account for the constant, incessant, drip – drip – drip of new laws which take away liberties and rights from Australians.

The laws are passed supposedly to crack down on terrorists and potential terrorists, or motorcycle gangs…but nowhere in the legislation are those people specified, so the laws apply to average Australians.

Which is why we get mass arrests, idiotic bail provisions made possible by the excessive laws, and a repressive crackdown on freedom of assembly and protest, as we saw in capital cities throughout Australia, and particularly in Sydney, in the past few days.

The ABC has been, by far, the organisation which has best stood out and stood up for human rights and civil liberties.

But, when the ABC is under attack, it’s media like The Australian who have been, at least in the past, traitors to their own tradition in not standing up for the ABC.

Why? Because they see it in News Corp’s own commercial interests to gut the ABC.

It will be very interesting to watch how the merged Channel 9 – Fairfax group now operates in the same space, with the same business drivers.

I’d suggest that the currently largely-dormant Friends of the ABC groups around Australia should be re-energised and expanded now, in anticipation of a battle royale ahead in the next few years.

Parliament…and the balance of power in the Australian democracy

Let me make some comments about the Australian Parliament.

Firstly, it is the laziest parliament in our western world. It sits for about 65 days a year.

The NZ Parliament sits for more than 90 days a year; Canada and the US Congress sit for 130 days, double the number of days c.f. Australia.

In Japan, it’s 150 days…and the UK House of Commons sits for 150 days a year.

The Executive

Now, MPs will probably tell you that they’d be happy to sit for many more days. But they are controlled by the party or parties in power, the Coalition or Labor.

In truth, they are controlled by the Executive. That is, by the bosses of whichever of the duumvirate is in power at the time.

Australia’s power under the Constitution is shared between the Judiciary, the Parliament and the Executive.

The Executive, which makes all the major decisions, is nowhere defined. So who is it now? Which Coalition politicians comprise the Executive? I’d love to know.

Parliaments taking back power

I make the observation that the two greatest parliaments in the English-speaking world, that of Britain and the US Congress, are actively trying to rein in the excesses of their Executives.

In the case of Trump and the USA, the process is called impeachment.

In the UK, the British Parliament has recently passed a special law forcing the Prime Minister to act as the parliament wants him to act over Brexit.

Here in Australia, there is no such movement under way to rein in the excesses of the Executive. For years, decades even, the Executive has been gaining dominance over the Australian Parliament.

For example, in the past few weeks, Prime Minister Morrison has decided, after a phone call from President Trump, to deploy Australian armed forces to the Strait of Hormuz. There has not been, and there can’t be, any review by the Parliament of that decision, or of the amount of taxpayer money we spend on it.

In the past week, the PM has signaled a change of national direction, away from involvement with global bodies which are doing good in the world, more into the realm of internally-focused patriotism, along Trumpian lines.

There has been not one word of debate in Parliament about such a huge change in emphasis. No-one has voted for it. No-one gets a chance to do so.

Professor Sir Simon Shama, writing in the London Financial Times in early October 2019, talks about the option currently facing western democracies. He says:

“The choice facing voters in the coming months and year is whether to put their trust in one or other version of democracy: the direct, populist version in which the leader’s version of the popular will is paramount,

or

representative constitutionalism, in which the executive is restrained by legislative vigilance, critically scrutinised by free media and held accountable by an independent judiciary charged with upholding the universally applicable rule of law.”

He says that the pioneering codifiers of working liberal democracy — from James Madison to John Stuart Mill — were all agreed on the three fundamental pillars standing in the way of either “Caesarist domination or majoritarian tyranny”.

1. The first was the inviolable sovereign authority of an elected legislature, without whose consent no laws could be enacted or executed.

2. The second was an independent judiciary committed to upholding the rule of law, from which no one including (and especially) the chief executive would be exempt.

3. The third was the sanctity of freedom of the press and all forms of expressed opinion.

I think everyone would agree we have an independent High Court. Mind you, we in Civil Liberties Australia might not always agree with their decisions.

Earlier, we’ve discussed press freedom, and press responsibility for the freedom of the national broadcaster, the ABC.

So, we come to the Australian Parliament.

Parliaments and laws

Parliaments should make laws FOR the people, not against terrorists or bikies.

As an esteemed commentator wrote recently:

“Labor (by which I think he means any Opposition Party, but currently the ALP federally) needs to develop some guts, and some respect for the liberty of the subject, in national security debates. The arguments for an increasingly unfree surveillance state need to be countered, and with conviction as well as an open mind. The political business of putting up ever-more-extreme policies has been more to test Labor than save us from terrorism. It’s a test Labor has been failing.”

The author? Our compere today, Jack Waterford, writing an Opinion piece in The Canberra Times on 20 September 2019.

And then there was Arthur Moses, the President of the Law Council of Australia, who said during his recent National Press Club address(4 Sept 2019):

When words like the rule of law, or freedom, or security, are “thrown around carelessly like confetti, they become white noise…there has been a trend in recent years of parliamentarians tripping over themselves to enact laws in the name of national security without understanding the effect of these laws on our media or the rights of innocent citizens,” Mr Moses said. “The result is an erosion of rights and freedoms taken for granted over centuries.”

So, today we’ve identified some problems. What do we do about them? The four things I think need to be done are to:

  1. Hold a public inquiry into East Timor negotiations involving Witness K and others, and whether ASIS and ASIO should be permitted to bug or surveil in Australia’s name.
  2. Create a new law for freedom of the press, and other freedoms, particularly as relating to mainstream media. We should go the whole hog, and introduce a Bill of Rights, which covers all the freedoms and liberties, just like other countries have.
  3. Draft a new law to protect whistleblowers, and also create a National Integrity Commission with teeth…as many people have been campaigning for, for many years.
  4. Most importantly, and most urgently, in my view: the Parliament of Australia needs to regain its equal power with that of the Executive and the Judiciary in deciding and managing the affairs of the nation.

Wouldn’t it be a truly wonderful thing if the Parliament ordered the Attorney-General to cease the prosecution of Witness K and Bernard Collaery?

Thank you.

  • Bill Rowlings is a former journalist on national dailies in Australia and the UK, an author, and private and public sector PR manager, who has been CEO of Civil Liberties Australia for 15 years.

Other speakers at the Manning Clark House forum were former editor of the Canberra Times, Jack Waterford, who was also compere; former AG’s Dept senior lawyer and manager, Ernst Willheim; academic, journalist, writer and former DFAT diplomat Alison Broinowski and Rex Patrick, a former submariner and more recently senior political adviser before taking his place as a Senator (Centre Alliance, SA) who is a long-term critic of the lack of transparency and over-reach by the Australian government.

CLA Civil Liberties Australia A04043

Box 7438 Fisher ACT Australia

Email: secretary [at] cla.asn.au

Web: www.cla.asn.au

191013

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