Free Speech Process Needs Rethinking

The National Times has published an article that captures what’s been worrying me about the ongoing WikiLeaks saga. It is written by Julia Gillard’s former boss, Melbourne lawyer Peter Gordon and was tweeted by Craig Thomler.

“LAWYERS are used to seeing all manner of calumny disclosed in documents produced under compulsion to the court. Because of restrictive rules, most never see the light of day, whatever the legitimate public interest. Likewise in the parliamentary arena.

It’s time to challenge this war on information, and call it what it is – a growing and insidious attack on free speech.

We should re-examine the way the law treats claims to privilege and confidentiality and the way governments can suppress information. It’s become too hard and too expensive to access and legitimately use information in this country. Governments and their public services play freedom-of-information laws like a board game.

It’s time for the law to recognise that even if there is a notional character of privilege or confidentiality to information, that should not be an end to the question. Some information might well have some such quality but nevertheless be fully justifiable for public disclosure.

Likewise, it’s time to fashion a legal mechanism for independent review of claims to ”national security secrecy”. It’s time to have a truly independent arbiter decide whether documents have a national security element, and not just a political embarrassment component; and if they do have a security element, whether it outweighs the public interest in its disclosure.

If the WikiLeaks disclosures tell us anything, it is that no political leader, whatever their colour, is going to hesitate for a nanosecond to conflate the notion of ”national security” with ”my own career security”. It’s time to provide genuine protection for people who take the bold step of coming forward with important information. It’s time to make the process cheaper and speedier.

But more important than any of these, when this information may compromise governments and the biggest corporations, it’s time to recognise we need a system that protects the process of disclosure from abusive litigious attack and from the pressure of professional public vilification. Because for every Julian Assange who attracts worldwide demonstrations of support, there are a thousand people whose important information got beaten into oblivion by big companies or big governments using various versions of the tactics on display in the past two weeks.

The sight of the most prominent politicians in the world inciting either the prosecution, incarceration or assassination of Assange, or the persecution of his family, is a form of barbarism that demeans us all. Moreover, the phenomenon of companies as big as MasterCard and Visa being gangpressed into anti-trust violations of their commercial relations with WikiLeaks is truly frightening.

WikiLeaks is the most obvious example of the broader war being waged by the most powerful interests in society on access to important information generally.

We are continuously softened up to the notion that it is proper for information to be denied us because it is confidential, ”commercial in confidence”, compromises national security, is subject to parliamentary or legal privilege, or should be kept quiet for diplomatic reasons. Too often these are vacuous claims.

I always admired John Brumby. To hear him say that he needed to know certain information about the desalination plant, but we didn’t, was a disappointment. Likewise Attorney-General Robert McClelland and Prime Minister Julia Gillard. I have worked with both of them and know them to be decent people. It is disappointing to me that their approaches to the WikiLeaks disclosures have seemingly lost sight of three of our democracy’s real ”foundation stones”: the presumption of innocence, the right to free speech and the protection of the rights of Australian citizens abroad.

Remember Mohamed Haneef, the Queensland doctor falsely accused of being linked to a British terrorist plot, in the days of the Howard government’s ”war on terror”. When his barrister, Stephen Keim, disclosed his record of interview, Federal Police Commissioner Mick Keelty laid a complaint, apparently with a straight face, that Keim should be punished for breaching his own client’s confidentiality.

My own former clients, the family of Rolah McCabe, are still fighting British American Tobacco in the Victorian Supreme Court just for the right to use information they obtained more than four years ago, to seek to prove that the court itself had been deliberately misled. In 2007, then director of public prosecutions Paul Coghlan was sufficiently concerned by the content of those documents to refer them to the Australian Crime Commission.

Today, I’m not even allowed to tell you what they say.”

Well said Peter Gordon.