A Golden Age for Journalism?

The information explosion demands good journalists to make sense of a complex world and explain it to busy readers

Journalists, Freedom Of Information Legislation and Investigative Reporting

The author argues that Freedom of Information legislation has been a disappointment for journalists

The changing role of a newspaper editor

Newspapers face new challenges because of the ready access readers have to alternative sources of information, including the burgeoning Internet, as well as the problem of journalists connecting effectively with their readers. Editors are expected to have more understanding and responsibility for marketing and revenue, and to produce quality newspapers while the proportion of their editorial staff deloyed to revenue-raising work is increasing. The new environment creates fresh opportunities, with rewards for imagination and energy - but core professional values in journalism must be maintained

The Minister and the Minister's Private Office. by Jack Waterford

Is Australia developing a system of decision-making that lacks adequate checks, balances and accountability. The author reviews the recent history of political responsibility and suggests some principles for judging the behaviour of ministers and their staff

Protection of Information Rights. by Jack Waterford

Waterford states that 'Access to information about government, in short, is a servant of a more effective and efficient public administration, not an enemy of it'

Leaking in the public interest

Loyalty versus the public interest: JACK WATERFORD looks at where the balance lies ALLAN Kessing’s only chance, before the courts on charges of breaching the Commonwealth Crimes Act for leaking a Customs report, lay in his denial that he had leaked it at all. A jury didn’t believe him. The proof that he had leaked it was circumstantial at best, if perhaps buttressed by Kessing’s line that if he had, he would not have been ashamed of having done so. The Customs document - a two-year-old report, mouldering and ignored in department files - said security at Australian airports, even in the wake of September 11, was a complete disgrace, leaving Australia wide open to an attack by terrorists and to drug importers. No one, in Customs at least, seemed interested in doing anything about it. Kessing retired, bitter and disappointed. Then a copy was leaked, to a journalist at the Australian. Its contents were a sensation, and an embarrassed government announced an external inquiry, to be led by a British expert on airport security. When he confirmed the findings of the Customs report, the government announced major reforms costing several hundred million dollars. The country is probably safer, whether from terrorists or drug importers, as a consequence. Kessing was convicted under Section 70 of the Crimes Act, which makes it an offence for a public servant (or former public servant) to publish or communicate “except to some person to whom he is authorised to publish or communicate it, any fact or document which comes to his knowledge by virtue of being a Commonwealth officer, and which it is his duty not to disclose.” Penalty: two years’ jail. Kessing got nine months, suspended on the basis that, being retired, he could hardly do it again. The trial judge was at great pains to tell the jury that it was a strict liability offence, in which no question of public interest arose. So far as intention went, all that was relevant was Kessing’s knowingly passing on the report, and knowing that it was his duty not to disclose it. The duty part is, by this theory, a matter of fact only: prima facie a report such as this should be kept from the innocent public or the press. The judge’s insistence that the public interest did not arise has a respectable history, though it is not an inevitable conclusion. A British public servant, Clive Ponting, was charged under similar provisions in the British Official Secrets Act for leaking the fact that his prime minister, Margaret Thatcher, had misled Parliament over the sinking of the Belgrano during the Falklands War. Despite warnings by the judge about the absence of a public interest defence, a jury acquitted him. After several other embarrassing leaks, the government reviewed its official secrets legislation and considered a public interest defence before saying that it was impossible to put one in. It is clear the British Parliament does not want one, though there are other protections, going to the sort of damage caused, which have an aspect of this. But our Crimes Act provision was law before the British history, and it would not be impossible for it to be interpreted differently here. Some, however, including many senior public servants, would say that it should not be. A leak, by definition, is disloyal to one’s employer and in breach of a duty of fidelity. It is perhaps the more serious when the employer is the government and where the public servant’s obligations are also a matter of statute and code of conduct as well as of the master-servant relationship. And it is, surely, arrogant for an individual to decide what the public interest is and at the expense of the elected government of the day, which, in fact and in theory, encapsulates the public interest. It is not, in short, for public servants to determine for themselves what public interest requires. In any event, against an arguable public benefit from a public-spirited leak is the damage caused by the lack of trust between ministers and public servants. That is a view reiterated in recent public service subsidiary legislation - some of it promulgated in the wake of a failed prosecution of another Customs officer - and in Public Service Commission memorandums, as well as in speeches made by various senior public servants, from PM&C head Dr Peter Shergold down. The Australian view does not even reflect the modern British position which requires “damage” as a result of leaks. The damage can be institutional (as in imperilling confidential exchanges between governments) but must also be real, as opposed to theoretical. In Britain there is a world of difference between leaking, say, battle plans and the invoice for the office coffee supplies; in Australia, in theory, there is not. One is as improper as the other. Is there a way out, not least for those who want sanctions against sheer disloyalty? It may well be that the thinking of Justice Paul Finn, whose reasoning in Bennett v HREOC inspired the latest Australian changes, goes in the right direction. For Finn, being a public servant is first and foremost being the holder of an office of trust - a stewardship of the public interest. A public servant is also in an employment relationship, and in a hierarchy leading up to a minister, and ministers have particular duties and prerogatives. Those relationships help define the public servant’s role, just as codes of conduct provide authoritative guidance about how the stewardship should be approached. But the primary source of duty is not an employment relationship. And the public interest, or welfare, is much more than a distillation of what the minister or government of the day wants, or what the duty statement says. It is also what the law, custom, equity, and the various institutions of checks and balances require. In just the same way as we speak of the duty to give full, frank and forthright advice to a minister and suggest a public servant would be derelict in her duty if she failed to it can be the duty of a public servant to let the public know about things which could put their interests at peril. Just where duty lay in a particular case between loyalty and discretion, and adherence to the forms, on the one hand, and disclosure on the other might be a matter of contention where one should, perhaps, lean towards discretion. But it would be impossible to say there was no circumstance where a duty to the public could not triumph. By such a standard it would be very significant to be, say, disloyal to a minister by drawing inconvenient facts to public attention, but it might well be one’s duty. It might, indeed, be just what the public interest required. • Jack Waterford is editor-at-large of the Canberra Times. This article first appeared in the newspaper’s Public Sector Informant section. Photo: RichVintage/iStockphoto.co

America's justification of Guantanamo on trial

The Supreme Court’s judgement seems likely to expose the deep flaws in Australia’s position, writes Jack Waterford TODAY, tomorrow, or sometime in the next week, the American Supreme Court will hand down its judgement on the fundamental legalities of the American gulag at Guantanamo Bay. If the signals coming from George W.Bush and his administration and from earlier, lower court, decisions are any guide, the court seems likely to remove the final props to the legitimacy of American claims that it has proceeded regularly in dealing with those whom it has decided to be its enemies. Most likely, the first practical effect of the judgements will be the requirement that the final disposition of all charges against the remaining Guantanamo prisoners, including Australia’s David Hicks, be subject to ordinary American due process, within the American judicial system. There are at least four consequences of this. All were predictable - and predicted by critics - from the start. A “due process” hearing will be subject to ordinary rules of evidence. This will necessarily involve scrutiny of the legality, probity, voluntariness and cogency of all material in the hands of American prosecutors. The American Bill of Rights has far stronger prescriptions against illegally gathered evidence than does the British or Australian common law system, and evidence obtained by coercion, torture, or even the cutely named “torture-lite” is likely to be excluded by the American courts. So is any evidence obtained by “rendition” processes - the American system of transporting prisoners for torture by nations not so squeamish about “coercive” interrogation. Without such evidence, most prosecutions will collapse. Other types of evidence, including intelligence evidence, will be subject to cross-examination, and prosecutors will not be able to put forward witnesses not available for such examination. Whether or not the court permits some evidence to be taken in secret, those involved in making the final decisions about the facts will have an opportunity to closely scrutinise the basis, and the logic, of Administration claims about those involved. Quite apart from the importance of the presumption of innocence, such people will be provided with ample grounds for scepticism about some of the deductions, made after all by the people who deduced the existence of weapons of mass destruction, who rationalised torture-lite as permissible under local and international law, and who gave us the open lawlessness, and contempt for justice, shown at Abu Ghraib and Guantanamo itself. A judicial, as opposed to tribunal, process, will also necessarily raise the question of whether a consistent and fundamental Administration claim - either that the Geneva Conventions do not apply to the Guantanamo inmates, or that somehow international law recognises the vague and shifting category of enemy combatant separate to and with different (and lesser) rights than an ordinary prisoner of war - exists. International agencies - particularly the Red Cross, responsible for administering the conventions - deny the existence of such a category, and so does Britain and most of Europe. Finally, the US Supreme Court will have to rule, implicitly at least, on new pretensions of executive prerogative being made by the Bush Administration, extending well beyond a claim of generous “war powers” and “freedom of action” to fight a congress-authorised war against terrorism to a right to conclusively determine the law, or to decide which parts of it will be enforced or not. In the middle of all of this are pretensions that the president, by executive act, or after tendentious advice from his justice department, can authorise breaches of local and international law. A chief functionary in this new and unaccountable system of local and international lawlessness has been the nominee as US ambassador to Australia. Australia, and the Howard government, has a keen interest in this affair, and not only because of David Hicks. Virtually alone of western nations, Australia has at all times supported the legality of the Guantanamo regime, and of efforts to screen it from any accountability to the American system of law. Intermittently, under strident criticism from the Australian legal establishment, our attorney-general, Philip Ruddock, has sought and obtained minor concessions about procedures so as to make any hearing “more fair”. But he has never manifested any alarm about fundamental flaws in the system. Even less has he shown any concern for the human rights of those affected. Our support for the American position has gone well beyond mere rhetorical support for the difficult position the United States, and its allies, including Australia, has in dealing with a new and ruthless enemy, itself seemingly obvious of any concept of law or decency. Our diplomats have played to script, and our diplomatic support has been used by the US to support its position. We have not only “understood” or “sympathised” with the US position; we have supported and rationalised it. If it ends up being repudiated by the US Supreme Court, itself noted for its sympathy to the US Administration, how much the more foolish do we look? No one suggests a moral equivalence between the wickedness of the US and the terror movement against which it is engaged. The argument is about something else: whether the war against terror, and for our version of civilisation, is advanced by abandoning the rule of law and international norms of behaviour, and engaging in conduct we have condemned in other countries. Whether, indeed, any battle won by short-term ruthlessness helps us win the war. It has long been noted that the American embrace of a non-accountable and lawless system has seriously undermined its position in the world, and deprived it of a good deal of the sympathy and support it received after September 11, 2001. But the moral opprobrium can travel too, if differentially. Britain, for example, has made no secret of its opposition to the Guantanamo regime and everything it represents, even if it has been quite unwilling to adopt the case of David Hicks. No one has suggested, on that account, that Britain is less than a full ally in the coalition against terror. Australia, by loyally supporting America, perhaps as a function of the “special relationship” between our prime minister and their president, is in a different position. Howard’s support may have helped the relationship; it has not advanced our national interest. Our supine support for the US has not only hurt our moral position in the war against terror. It has undermined our standing in the region, and in international forums, in arguing for international human rights norms. Implicitly now, we can be judged not by what we ourselves do, but by the standards which we tolerate from our great and powerful friend. If it is okay, as it seems to be with John Howard, Alexander Downer and Philip Ruddock, for the US to administer “coercive questioning” to terror suspects, why is it not okay for Indonesian authorities to do it to Papuans it suspects of belonging to separatist movements? Or, for that matter, Australians charged with drug offences? If rendition programs are okay, how are we going to protest if, say, China, kidnaps some discontent Chinese citizen in Malaysia and returns her to China for a show trial? Or if the student is kidnapped from here? If indefinite detention is okay for anyone said to be an “enemy combatant” what will we do if some Solomonese warlord decides that Australian policemen fit that description? Or some Sunni insurgents that some Australian security guard fits it. If we provide consular services only to “good” baddies, such as drug dealers, but withhold them from bad baddies, such as political suspects, what will happen when a Mugabe decides that some Australian tourist (or diplomat) is conspiring against his regime? Once upon a time Philip Ruddock might have been able to postulate answers by pointing to the Amnesty badge he still defiantly wears on his lapel. That, after all, is the symbol of the demand for an international rule of law. These days, alas, Philip Ruddock stands, alongside George Bush, as the enemy of every principle, in relation to the rule of law, that Amnesty stands for. What a pity, and how unnecessary, that Australia has to bear the same reputation. • Jack waterford is editor-at-large of the Canberra Times, in which this article first appeared. Photo: Andrew Jeffre

By all accounts, this is a government that can get away with anything

The actions and services of government are increasingly hidden by an almost impenetrable screen, writes Jack Waterford THE Howard government is the most accountable since Federation. We have John Howard’s own word for this - while he was repudiating an opposition attack on his reducing the role of Senate committees and on the passage of legislation making our electoral system more corruptible. It is certainly the most powerful since Federation, given the effect of its unrelenting centrism, the increased significance of welfare (whether through social security or the tax system) in people’s lives, and the increased importance of discretion and political whim in how government delivers goods and services. But it is almost impossible to argue that this increased power has been accompanied by increased checks and balances, by a willingness to give an account of how power has been exercised, or by corrective mechanisms which underline the public interest and the rule of law. This is not to postulate some other, earlier government as being more accountable - or accountability minded - so much as to say that in the non-stop drift towards greater and greater executive power, accountability falls further and further behind. The high-water mark of formal accountability was probably in the 1980s, after the Fraser-era passage of the various administrative law packages (judicial review, the Administrative Appeals Tribunal, the Ombudsman and Freedom of Information legislation), the financial management reforms of the Hawke era, and the widened scope of audit and parliamentary committee review. Not one of these developments is in better shape today, and not a few important other parts and institutions of the accountability system are also in greater disarray. Result? Executive government can do more and get away with more without anyone, particularly at the top levels, having to explain or being likely to be held responsible. More and more actions and services of government now are pulled behind an almost impenetrable screen, with no one at all - except, sometimes, a hapless junior public servant - ever carrying the can. It is not only Howard’s fault. Some of it is the opposition’s. When Howard was boasting of the accountability of his government, for example, he meant little more than that he and his fellow ministers answer more questions without notice in the House of Representatives than any previous government, and certainly many more than the Keating government. He’s right, but the problem is that the opposition hardly bothers to ask questions, certainly about facts, because the government does not bother to answer them. Rather, a rhetorical topical proposition is advanced (the thrust of which is that the minister is a liar or a fool) and the minister answers it at large by counter-bombast. Meanwhile, the government prepares a set of tame questions (platforms from which it can blast the opposition) to be asked by willing government backbenchers. No information is sought; none is provided. Fake theatricality is provided by synthetic outrage at (inevitably) partisan rulings by Speakers, who make little effort to enforce standing orders against the government. No information, and no accountability, is provided by question time. The three best government bovver boys (Howard, Costello and Abbott) are comfortable enough with the system (which has matured since the Hawke era) that they have no impetus to change. But it could be changed, if, say, Wayne Swan and Stephen Smith and other supposedly brilliant Labor tacticians were taken out into the South China Sea and sunk, and if Kim Beazley and remaining frontbenchers swore solemn oaths that they would never again ask a question inviting the government to express an opinion or to make an inference. If that happened, the Speaker might feel constrained to require ministers to deal with facts, and, given that the implications of facts are usually fairly obvious, to sweat a little. Meanwhile, the process of making parliament itself a mere talking shop continues apace. There is less time for debate and for committee stages of important legislation, and even less pretence of ministerial willingness to respond to questions or to the drift of debate. It has always been true that party discipline has always been strong in the House of Representatives, but there was a time in which some parliamentarians actually listened to argument and made an attempt to deal with questions, or, sometimes, to persuade the minister to respect a decent point. Any pretence that the Representatives would further develop its committee system has been halted. The main committee process has some merits, but can hardly be said to have freed the main chamber for bigger debates on more fundamental issues of policy and principle. With the Senate, the major consequence of the government’s acquisition of a majority has not been so much the folding up of old committees, or putting all of them under the control of pliable chairs. It is the virtual impossibility of getting up a Senate inquiry into any issue the government does not want raised. This does not prevent questions being asked in estimates committees - which were usually, in any event, the more effective at drawing out information from public servants. But the time allowed for the estimates process has been reduced. So has the quality and quantity of time devoted to high policy issues by parliamentary committees of any sort. On almost all legislation or resolutions passing the parliament, backbenchers have little opportunity, other than from their personal initiative or from their own party committee systems, to gather information capable of contradicting the material put to parliament by the government. Needless to say, the resources of the parliamentary library are being reduced, and, as ever when parties become smug in government, the utility of allowing such a research service is more and more questioned. That the government operates a very well-resourced (and publicly funded, to a higher degree than the parliamentary library) political intelligence service, entirely unaccountable to the public, reduces its own demand on such resources. Meanwhile, government has entrenched ministerial advisers into the system in a way that has considerably frozen the public service out of top-level decision-making. This may, to a degree, protect public servants from politicisation. But it hardly enhances government accountability, given the way government has winked about systemic failure of minders to properly record their actions, and the way that government forbids advisers to account for their actions or advice to parliament. In no western system, whether of the Westminster or the Washington model, are the actions of executive advisers, or the operation of the patronage system, subject to less public or parliamentary scrutiny. The retreat from the operation of boards and corporate models back to direct ministerial supervision has also reduced the flow of information, other than spin, about what is going on. Meanwhile a parliament entirely cowed by the executive has further emasculated itself by accepting a changed appropriation system whereby it has no idea whatever what it is giving money for, and even less idea afterwards, of whether the money has been spent, or well spent. Almost all the benefits of switching to an accrual accounting system have been lost by the complete legal and political unaccountability of vague or meaningless purpose statements. There is almost no imaginable purpose the government could not spend money on tomorrow without being able to say the expenditure was authorised under an appropriation already made, including, say, a private yacht for the prime minister or a $500 million gift, free of conditions, to Rupert Murdoch. It is that utter lack of accountability which allowed government to spend more than$100 million on partisan advertising to create a case for industrial relations law, and which allowed Howard to spend an ad hoc $1billion to create his Pacific Solution for boat people. This reduction to meaninglessness of one of the most important constitutional accountability guarantees has the full blessing of a High Court which, so far as promoting the accountability of the government is concerned, is the weakest, in moral and intellectual terms, since Federation. Not a single judge has executive or administrative experience - and it shows. Only a few judges are preoccupied with issues of rights of the citizen against an ever more powerful state, the balance of rights between different layers and levels of government, or the importance, in real as opposed to self-serving theoretical ways, of the separation of powers. Their concerns are inward, and their relevance to the accountability debate is diminishing. The quality and quantity of judicial scrutiny of government action has significantly declined, partly as a self-inflicted wound by arguably the worst decision in the court’s history, which castrated the Federal Court and reduced it, almost, to hearing immigration appeals. Meanwhile executive government has been relentless in trying to reduce the scope of judicial review, and to increase discretion to ministers and public servants, particularly in the immigration sphere. There are constitutional limits to how far such restriction can go, but then again, when a High Court will happily approve detention forever for asylum-seekers unable to be deported anywhere, some wonder whether residual rights are worth much anyway. By any account, the High Court is less of a check and balance, and less likely to hold government power to account, than at any time in its history. Administrative tribunals have been weakened, in powers, in independence, and in scope of review, even as the scope for public service discretion, not least in the new welfare-to-work regime, has been increased. A further blanket has been put over the accountability net by the practical contracting out of many of the service-delivery functions, in ways that additionally reduce the chance of any review. FOI legislation has been rendered so complicated and expensive - and so subject to novel and arbitrary exclusions, such as the need to protect a minister from possible embarrassment that it now plays almost no role in the accountability system. This could change as a result of a matter before the High Court, but, given the government’s (and the attorney-general’s) devotion to administrative law, most cynics expect that any inconvenient judicial decision will be overridden by a tame parliament and by fresh administrative obstructionism. AT LEAST three senior independent public officials - the auditor-general, the ombudsman and the public service commissioner - have important roles to play in the accountability system. All treasure their independence and are fine people, but it would be fair to say none has given government the slightest amount of trouble in recent years, and not for want of issues upon which they might have done so. The auditor has issued some very critical reports, but few have involved systemic problems and, in almost cases, all criticism has fallen well short of the minister or the government as a whole. Gone, perhaps forever it seems, has been any sense of mission of being the people’s watchdog, or the own-motion analysis of whether the public, and the public interest, are getting value for money. The public service commissioner’s annual reports show declining faith by public servants in the probity of the system in which they work. They show particular concern about interaction with the minister’s office, and about the complete unaccountability, to the public at least, of the ever-burgeoning and more powerful ministerial adviser. If there are any private confrontations with government to protect the integrity of the service, no one knows. The commission seems content to play a largely passive role in such matters, as well as in carrying out its functions over senior appointments and promotions. This power has shifted, in this vacuum, to Finance and to the secretary of Prime Minister and Cabinet. Reports on the immigration scandals came out under the aegis of the ombudsman, but it would be quite unfair to him to ascribe to him any initiative in the matter. Originally, indeed, the report was commissioned from a former police commissioner with no relationship to the ombudsman’s office; it was shifted there only so as to make clear the powers of the inquiry. Since the first explosive reports - from the outsiders - the ombudsman has issued many more, equally damning, reports. But it is perhaps a reflection of the office’s distaste for publicity and shyness about embarrassing the government that they have received little attention. Even then, however, the reports, formally at least, have helped get the government off the hook, since they have conveniently found all the manifest faults to be those of usually very junior public servants and a bad culture in the department. They have avoided any discussion of the obvious role of various ministers or the cultures these imposed. The ombudsman could retort that he is precluded from investigating the actions of ministers. But that, perhaps, underlines the fact that he is hardly putting government under any deep stress - in immigration or anywhere else. One could go into purely political zones, of only passing interest to public servants. There is the complete disappearance of ministerial codes of conduct, the rewriting of ministerial responsibility rules to the point where anything now goes. The scandalous way in which ministers jump from the public trough to enriching themselves by selling access to and influence over their old colleagues. The attacks of amnesia and paralysis by ministers over what they knew, or could recall, or whether they were told anything over matters such as the wheat-for-oil scandal. It is rather hard to divine from any of this that government is crushed by the burden of being called to account. Or even that, were it being enforced by a master who believed in accountability, it could be a crushing burden. All that one can be reasonably sure of is that the next government, of whatever complexion, will have even less zeal to account, and, probably, be under less pressure to do so. • Jack Waterford is editor-at-large of the Canberra Times. This article first appeared in the Public Sector Informant section of that newspaper. Photo: Andrew Jeffre

Black kids used in drug test

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Deciphering Moran's mission

Note full resource has been lost. Australia\u27s most powerful bureaucrat will turn to the private sector to improve the public service, but that won\u27t solve his problems, writes Jack Waterford in the Canberra Times IT\u27S VERY UNLIKELY anyone will be much surprised by the agenda for public service change due at the end of the month from an advisory committee chaired by the Department of the Prime Minister and Cabinet\u27s secretary, Terry Moran. It\u27s already on the table, whether from Moran himself or from his master, Prime Minister Kevin Rudd. To paraphrase former Defence Department secretary Ric Smith, discussing (in Paul Kelly\u27s new doorstopper, The March of Patriots) Australia\u27s decision to fight in Iraq, the Government is not \u27\u27seeking advice on whether we should go to war as distinct from how we should go to war\u27\u27. Moran has made clear his critique, most recently to the Institute of Public Administration Australia in July. He picked on four main areas where the public service could lift its game, to be the best in the world... Photo: Sean McBride, iStockphot