The nature and limits of State power is a complex topic. The recent warrants executed by the Australian Federal Police to seize materials held by journalists has caused debate in the media, probably entirely due to the fact that the subject of the warrants were journalists. There’s an inherent conflict here between publishing information about the activities of the AFP and the self-interest of a massive and powerful industry.
On the other hand, these types of incidents are a helpful opportunity to take stock of where we are as a society and what we think the relationship between the State and the Press should be. We talk a lot about the problems of ‘Insider’ culture, with some journos relying on advance information directly from authorities in order to get exclusive scoops and background information on public documents. Events like this let us see a bit more into what that relationship between elites is like, even to the extent of journalists wanting to do anything other than acknowledge that the relationship is sometimes a bit too cosy.
But all of this is prologue to the topic that I find particularly interesting about the warrants – and there are a lot of interesting aspects (are judges effective scrutineers of warrants sought by authorities? what powers are used to seek leaks? what protections should be available to journalists that are not available to individual members of the public? is the ALP somehow to blame for any of it? There’s a really good discussion about the relationship between the AFP and the Minister that I wish more people were taking up…). The topic I find really fascinating is the rhetoric about whistleblowers in the context of State secrets.
There are lots of different ways to tackle the topic and, I find, where you start with questions strongly influences where you end up. For example, lots of very reasonable people start with a basic assumption that whistleblowing is good and important, and therefore it should be protected. I think that you can start the debate earlier in the reasoning process: what are the best ways of ensuring accountability by the State? And this question might or might not lead into whistleblowers.
I should note that there are extremely bad ways to tackle this question. One particularly bad way is to ask whether whistleblowing is or is not lawful. It doesn’t help you, no matter how many times you chant the words Thomas v Mowbray, because the core question will be left untouched: if it isn’t legal, should it be? Maybe we want to be more sophisticated and say some kinds of whistleblowing should be protected and some shouldn’t be, but beginning and ending with the legal analysis is pure noise.
Let’s say you are a public servant and you discover that the Government is doing something wrong. What should you do?
Maybe it depends on what you mean by ‘doing something wrong’. In a lot of the cases we discuss, we cast it in terms of morality. The Government is doing something that I think is morally wrong, it is doing it in secret, and the public has a right to know that it is doing something morally wrong.
None of the formal channels of whistleblowing will really help you here because they are concerned more with formal wrongdoing. Unethical behaviour has to rise to the level of corruption before you can report it. So should you have an alternative option?
It’s here that I think reasonable people can have a serious debate. I do not think that there should be an alternative option to divulge the information. Instead, I think the appropriate action is to resign. If you cannot reconcile yourself with the job you have been hired to do, this seems to be the correct pathway.
But sensible people disagree with me. They say that I underestimate the importance of morality to individuals and that, if the Government is acting immorally, the public has a right to know. I still don’t think the private moral intuitions of an individual officer should be the determining factor in whether or not a State secret should remain secret, but I don’t think people are stupid for disagreeing on this point. I think institutional morality is a political matter, with the public electing the leadership that it wants. An individual public servant is in a position of trust on behalf of the wider community and should not substitute their own morality for that of the elected. Maybe that makes me a boot-licker, but I think it’s a more reasonable position than the alternative.
Imagine, for example, that policy work was being done to increase the migration intake. The Government knows that increasing migration is controversial and the matter will need to be handled sensitively. The brief is classified Cabinet-in-Confidence. Meanwhile, you’re a public servant who (in my view) shouldn’t be in the service and you hold really awful views about migrants. You decide this policy conflicts with your morality and you leak the brief to some tabloid rag. This scenario happened a few years ago.
Or let’s get a bit closer to a high profile case. You’ve been acting in a higher level job for eighteen months and you’ve seen some activities which just look really bad. When your job is finally advertised so that you can move into it permanently, you’re not found suitable and, effectively, returned to your original level. You’re pissed off, so leak a bunch of stuff including the stuff that’s legit but looks bad.
I don’t subscribe to the ‘If you want good things, you need to choke on bad things’ view common to liberalism, but I do think the above examples speaks to why I’m uncomfortable with individual public servants undermining the institution on the basis of their own moral beliefs.
Although the above was long, it gives me a bit of a pathway for discussing issues where illegal conduct was alleged. Here we have a number of institutional avenues available. If I’m in the National Intelligence Community, I can report the wrongdoing to the Inspector-General of Intelligence and Security (IGIS). It’s a highly respected office, with the current IGIS (Margaret Stone) being a former judge. If I’m somewhere else in the service, there are similar avenues available to me.
Again, there’s a tension here. Some people genuinely do not believe that these internal (or quasi-independent) are adequate. Who guards the guards? What stops these oversight mechanisms from being corrupt themselves? Aren’t all cops bastards?
And this is a really good site for public discussion. Is any level of independent oversight going to satisfy those who fundamentally reject State authority? What I find really weird in the public discussion is that the existing infrastructure for oversight and review is entirely invisible. The public debate is either a person leaks or they keep quiet: and that’s just not true.
The above paragraph can be easily flipped for people whose intuitions have them sitting closer to my side of politics: what is the minimum amount of oversight needed before we would accept leaking as an acceptable oversight mechanism? There is a genuine worry that, for some, a mere shell of formal oversight would suffice to make leaking illegitimate. I think this is a real problem with my side of the argument: if we want to say that whistleblowing to the Press is illegitimate, we need an extremely robust system of oversight in which the public can have absolute confidence.
We can usefully go a bit meta here. What if you’re whistleblowing about the inadequacy of internal review and quasi-independent oversight? I actually see this as being a separate category entirely, and I wonder the extent to which the McBride leak (the defence lawyer who believed that the Australian Defence Force had acted unlawfully, reported it but didn’t get the outcome he wanted, so leaked) fits better into this category.
It is not clear to me at any point in the above where the Press has a natural role to fill. The standard intuition is that a free Press is essential to an informed electorate to exercise democratic control of government. This standard intuition is attributable almost entirely to the Press telling us that they are an essential part of democracy.
The account is that if a national secret is leaked to the Press by somebody (let’s avoid the term ‘whistleblower’ for a moment), then the role of the Press is to determine if keeping that secret is in the ‘national interest’. It is assumed that the Press is better at determining what is in the national interest than elected ministers and government officials, but I’ve not seen any convincing argument to believe that it’s true. On the contrary, I’ve seen them publish stories if they’re salacious, or scandalous, or likely to cause embarrassment. This could be confirmation bias, as I haven’t seen the leaks they didn’t use.
Maybe that’s unfair. The ABC came into possession of a number of documents that hadn’t been leaked but, instead, had been negligently disposed by government officials. Rather than sit on them and use them for a wild range of stories, the ABC returned the documents. There was a lot of politics involved and the whole story is messy, but the charitable interpretation might be that the ABC is a trustworthy organisation who will return leaked documents if they’re not in the public interest to be leaked.
Even so, what makes a journalist’s (or an editor’s) decision about what is or is not to be kept a secret better than somebody more accountable? Should journalists who obtain leaked information be required to obtain a court order to publish it? When the vast majority of media in Australia is owned by billionaires, why is the profit-motive an acceptable check on decision-making here? A quick reminder that Australians trust the police, the army, and the National Intelligence Community significantly more than they trust the Press. And if the moral justification of the Press is that it ensures an informed electorate, it seems worrying that the public is so poorly informed…
I’m not persuaded that the Press really has a role here, especially given the other formal mechanisms for holding the Government to account.
I think that’s a better sequence of reasoning than beginning at the end: ‘The AFP raids are an assault on the Free Press, and this means we’re five minutes to fascism o’clock’. In the above structure, we have the uncomfortable relationship between political elites and media elites, and the question of whether journalists and editors should be deciding what’s in the public interest. But it relies heavily upon the existence of formal mechanisms of oversight and review, and upon the idea that an individual public servant’s morality should not be a reason to leak information.
But that leaves open a final step: perhaps we should just believe as an article of faith that a Free Press is good and great (despite everything) and that fact that the above reasoning is incompatible with that article of faith demonstrates something heretically irrational and bad about the argument.
And even though I’ve used rhetorical flourish in that last paragraph, it might not be a bad argument. Does the risk of somebody leaking to the Press act as a preventative control on official behaviour? Sure, the Government could do something that was strictly lawful and technically legitimate, but it smells so bad that no reasonable person could believe it justifiable: does the risk that somebody will leak the decision act as a countervailing factor?
This isn’t complete lunacy. One of the consistent irritants for public servants is that the threat of the Press finding out about ordinary business expenses means the scope of business expenses is sharply narrowed. The Department of Immigration couldn’t even get new taps in its kitchens without the media losing its mind about extravagant wastes of public money. Hospitality for foreign officials tends to look embarrassingly stingy – especially in comparison to the hospitality received from foreign officials – because of fears about journalist’s perceptions of public expenditure. Perhaps the same reasoning works here with decisions to do morally dicey things: the fear of it leaking means there needs to be extremely good reasons to fly in the face of public morality.
I remain unconvinced. Perhaps it fits better as a tangent where there is insufficient oversight and scrutiny, or maybe it sits more neatly in the opposite position regarding leaking on grounds of morality.
At any rate, I wish that there was more space for serious debate about these topics. The Press will always be pro-Press, so the need for academics to show up and create a competing public discussion is really essential.
Only The Sangfroid 