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Tony Abbott’s Gag Order Reflex

WikiLeaks has revealed a nationwide gag order has been issued by the Australian courts, preventing the press from reporting on allegations of bribery involving several political leaders and key economic institutions of Australia. But you'll never hear...

by Claire Porter
11 August 2014, 2:02am


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WikiLeaks has revealed a nationwide gag order has been issued by the Australian courts, preventing the press from reporting on allegations of bribery involving several political leaders and key economic institutions of Australia. The suppression order, issued by the Supreme Court of Victoria, is wide in nature. It stops Australian media from reporting on allegations of bribery, which involve several regional national leaders and their relatives.

There are 17 people the Australian media is prohibited from naming. We are not allowed to imply, suggest or allege that the named people are involved in attempting to receive, or receiving a bribe.

You'd be forgiven for being frustrated at the vagueness of that.

Do I, and my colleagues across the Australian media landscape like the Sydney Morning Herald and The Guardian know more? You bet we do. Can we report on it? Not on your life.

If we do, we risk breaching privacy injunctions and contempt of court charges, which come with severe fines and possible jail time. And it's not like media outlets these days have a lot of money to spare.

If you visit the WikiLeaks website you can find out for yourself the names and titles of the people and organisations allegedly involved, but you sure as hell won't be reading about them on this website, or any other for that matter. The closest we can come to saying anything about it is that the kibosh stems from a "criminal trial".

Not since 1995 has state-sanctioned censorship of this nature occurred, according to Julian Assange, when the government of the day attempted to suppress Fairfax from publishing details of a joint espionage operation with the US to bug the Chinese embassy in Canberra. That particular gag was issued on the grounds of "national security", but the government of today has no such claim.

The best they can muster is that the people and organisations involved are not presently the subject of direct charges, but that is a giant and weak as hell technicality.

In short: a person or persons involved with Australia's central institutions has been named in a trial involving political leaders in Malaysia, Vietnam and Indonesia. That's about as much information I can give without getting in trouble.

The gag order was issued on the grounds that it would "prevent damage to Australia's international relations that may be caused by the publication of material that may damage the reputations of specified individuals who are not the subject of charges in these proceedings".

It also alleged the existence of a "secret 19 June 2014 indictment" of unnamed executives involved in the case.

The court order, issued on the 19 June, is a super-injunction, meaning even reporting on the existence of the gag order is illegal.

WikiLeaks founder Julian Assange called the order "the worst in living memory". Continuing, “The Australian government is not just gagging the Australian press, it is blindfolding the Australian public.”

“This is not simply a question of the Australian government failing to give this international corruption case the public scrutiny it is due. Foreign minister Julie Bishop must explain why she is threatening every Australian with imprisonment in an attempt to cover up an embarrassing corruption scandal involving the Australian government.

“The concept of 'national security' is not meant to serve as a blanket phrase to cover up serious corruption allegations involving government officials, in Australia or elsewhere. It is in the public interest for the press to be able to report on this case.”

Australian barrister and human rights advocate Julian Burnside QC told VICE, the Australian and international press ought to man up and consider sharing more details of this and any other leaked allegations of political corruption. "Journalists should be more courageous", he said.

Burnside said he was concerned about the voluntary self-censorship of the Australian and international press, though media outlets are most likely concerned about defamation or even the threat of a lawsuit, due to their dwindling revenues and the cost of fighting such a battle in court.

Paul Gordon, an Australian technology and IP lawyer told VICE that the court order was made on the basis that the release of the information contained in the affidavit of a public servant could harm the proper administration of justice, and Australia’s national security.

He said it would be “premature” to conclude a cover-up.

“If the final judgment were to be suppressed, or if there were to be a suppression order on the diplomat’s evidence following the conclusion of not only this case, but any other cases that arise from it, then perhaps this should be argued at greater length,” he said.

“The fact is, however, that until cases run their course there are often quite legitimate reasons to keep private any details, particularly contentious details that could harm Australia’s interest in the world at large.

“The question for a free democracy is what happens to that information once circumstances change from the release of the information being highly sensitive to being simply embarrassing.”

As for the allegations of the involvement of the Reserve Bank of Australia, the question as to whether this is reportable comes down to whether there is an enforceable court order in place, and according to The Guardian at least, there is.  In which case media publications and journalists which publish on the matter could be held in contempt of court, “all subject to harsh penalties; five years imprisonement and / or $88,000” Mr Gordon says.

Even without an order there is still a concern for defamation. “Defamation proceedings are limited to individuals or organisations with fewer than 10 employees,” Mr Gordon says.

“There is also a number of exceptions that could apply, so it would really be on a case by case basis.”

The lawyer said he would continue to watch this case “with interest”.

Obviously the people the government is seeking to protect are not named in the trial but clearly have the potential to be involved, thus the need for a gag order. Because they'd hate for a pesky investigation - which would inevitably flow from reporting by an un-gagged press - to interfere with business as usual.

Attorney General George Brandis also introduced a bill into Parliament last month making it illegal for journalists and whistleblowers to report on Edward Snowden-style leaks, punishable by up to 10 years in jail for anyone who dare tempt his wrath. The bill has yet to pass through both houses of Parliament.

Considering the source of this new leak, I doubt Brandis would even bother making the distinction. This is a leak the government would prefer not be publicised, involving people and organisations they'd rather not be mentioned.

Though there has to be some kind of irony that the press found out about a gag order not through the government but through WikiLeaks. I guess the point was they didn't even want anybody to know the trial was occurring, but it seems a little counterintuitive to issue a secret gag order.

With strict defamation laws already in place,  it's not unreasonable for journalists to investigate political corruption.

The need for federal corruption body to examine dodgy dealings within the government sparked up again a few months ago, after the NSW Independent Commission Against Corruption (ICAC) received a batch of leaks so damning that it toppled two senior ministers, including Premier Barry O’Farrell, and eight back benchers. NSW is the only state with its own corruption commission.

If ever there were a precedent for an independent federal oversight body, this would be it. The Australian government cannot and should not be able to hide potential disgrace from the public.

A free and open press is the cornerstone of any democracy. To quote author Anne Lamott, "If people wanted you to write warmly about them, they should have behaved better."

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