Between the lines: New powers and accountability for police and the media
Address to the Australian Press Council
Australian Federal Police Commissioner Mick Keelty APM
23 March 2006
Thank you for the invitation by the Australian Press Council to provide this Annual Address today.
I’d like to begin by acknowledging the traditional owners of this land, the Gadigal People. It is important to recognise their historical connection to the land on which we gather today.
You have invited me to speak at a time of particular personal significance. Yesterday I revisited my own past by visiting my secondary school and addressing the students. This was the first day of my second 5-year term as Commissioner of the Australian Federal Police.
It is at these junctures in our careers and our lives where we reflect on what we have achieved, learnt and observed. In particular my term as AFP Commissioner over the past 5 years has brought into sharp focus, my views on the relationship between the police and the media and our respective roles in society. It is an area where I have developed particularly strong views.
My topic is “Between the lines: New powers and accountability for police and the media”. This annual address is part of the Press Council’s activities aimed at promoting discussion of matters related to the freedom and the responsibility of the Australian press. I also note that the Council’s Statement of Principles includes providing “first and dominant consideration to what it perceives as being in the public interest”. I suspect my perception and yours of what constitutes the “public interest will be poles apart.
You may suspect you are looking at the metaphorical Trojan Horse, having unknowingly invited the enemy into the city gates.
I am in no way suggesting that the police and the media are warring parties, however the complex environment in which we all must operate and certain elements of our respective roles means that sometimes tensions can emerge when our paths overlap. This can be exacerbated by the robust and competitive market in which the media operates. Indeed the AFP has experienced its fair share of conflicts with the media. It is a result of these experiences that my strong views as to the role and accountability of the media have formed.
I do however need to point out that the AFP’s relationship with the media during my first term as Commissioner has overall been very positive. I suspect that 5 years ago, the AFP did not feature very strongly in journalists’ minds. On many occasions I found myself having to explain who we were and what we did, especially when compared to our state counterparts.
Today the media takes a strong interest in the work of federal law enforcement and we are working hard to produce a strong and productive relationship with the media. This is not surprising because in many ways our objectives in serving the community are very similar.
We are both in the business of seeking out information, following up leads and serving the public interest. And these are objectives that often have to be achieved in difficult and time critical circumstances. We also share extraordinary powers and responsibilities to apply those powers “without fear or favour”, which again is highlighted in the Council’s Statement of Principles.
Importantly, we share a responsibility to ascertain the truth.
As a professional policing organisation we recognise and value the role of the media in keeping all aspects of our society informed, accountable and honest.
The media too holds important powers and responsibilities, namely the power to inform and influence a vast audience. Do we share the same standards of accountability? This surely is where the Press Council has a role to play.
By way of background, let me make a few observations. I say at the outset that in my view as a career police officer, the past 5 years has been characterised by a shift in journalism where police roundsmen and women who were familiar with the criminal law and familiar with the court systems have been over-run by a new cadre of journalists who have been directed by their news editors to go out and report on the security environment. Some of these journalists have little or no understanding of our criminal justice system. There are inherent difficulties in sending people who are unfamiliar with law enforcement, unfamiliar with the court system; and unfamiliar with the genesis of legislation and policy to cover stories in the new environment.
For example, the suite of new counter terrorism legislation has been overtaken by a fear in some quarters that criminal offences such as sedition will impact upon the freedom of journalists to express their views. May I say as a general remark that the reporting on the new laws has not always been balanced and has not come from a position of understanding.
In addition, the national security environment has created an insatiable demand for information about AFP operations. It has also placed unprecedented demands on us to provide information to the media while at the same time protecting operational integrity. Some journalists have little understanding of, or regard for, the impact on the operational integrity of national security investigations where the consequences could not be more serious.
And I believe there is pressure on both of us, the media and the AFP to strike the correct balance here because in my view, how we portray the events in the media will have a deep and abiding impact on potential terrorists.
The police and the media share a responsibility to be aware of the potential negative impact of events such as search warrants that can escalate tension in the community. Too often what the media describes as “raids” are sensationalised. These images impact upon community attitudes and the marginalisation of groups. It is critical for the media and the police to work together to mitigate against the escalation of tensions.
How alleged terrorists who are dealt with by the criminal justice system are reformed and just how many become recidivists will, I believe, be linked to both the perception and the reality of how they are treated in the media. Take, for example, the response by sections of the Muslim world to the Danish cartoons. One observation you may care to make is just how quickly significant numbers of people can be mobilised by a single issue.
This neatly leads me to the question of accountability. From my perspective, the AFP has and will continue to be as open and transparent as we possibly can because we appreciate the media’s role as the community’s watchdog and the need for police accountability. As we all know, the issue of accountability is a staple topic in journalism today. Media outlets devote much time and space to examining the level of accountability employed by other industries in society. And rightly so - the consequences of not being accountable can be dire for the general public. You only need to look at HIH to see how community confidence, shareholder and stakeholder confidences are undermined by inappropriate accountability mechanisms.
On the issue of accountability, there has been a plethora of opinion pieces, particularly concerning the terrorism laws. I’ll come to the Bali 9 and the Schapelle Corby cases shortly but opinion pieces have started to dominate our newspapers.
But opinion pieces are just that. They are one person’s opinion and rarely do you get a full insight into the background of the person providing the opinion. And yet because of the way the media now operates, because of the internet and because of what I call sloppy journalism, journalists writing articles will search for information about a particular subject matter. Suddenly opinion pieces become infallible and of course nothing could be further from the truth. Opinion pieces are often written by individuals who are trying to serve their own purposes. They often contain information that has either not been well researched, cannot be substantiated or is incorrect.
I am reminded here of the address that was given last October at the Andrew Olley media lecture by John Doyle. For any of you here today who have not heard John Doyle’s lecture or have not read the transcript on the internet, it is a good read, let me assure you. I think John sums it up when he says about opinion pieces, and I paraphrase “newspapers are full of it. Any half-baked idiot who can string a few sentences together is given a go. Particularly if the opinion is inflammatory or somehow ratchets up the climate of fear or loathing. Simply and obviously because it sells more newspapers”.
It seems that every time I speak on an issue whether it be about the new counter terrorism laws, or whether it be about reprogramming terrorists, comments are sought from people who hold opposing views. People like civil liberty councils, comments from defence counsel, unsworn statements made by accused persons will be quoted and presented as if they were the absolute tested truth which obviously is not the case. Don’t get me wrong I totally understand and accept that if I was to put a view forward on these types of issues it is necessary to seek a balance but the counter view has to be presented in context. Civil libertarians for example represent a small minority. And yet I would argue they get exposure in the media which is disproportionate to both their influence and their constituency. What is not emphasised is that civil libertarians, unlike the police, are not accountable outside of their own constituency. My observations are simply about the coverage such bodies get in the media, not the principles they espouse.
The police are accountable to the Courts and to the Parliament through processes such as Senate Estimates hearings as well as a litany of oversight bodies. This leads me neatly to the Press Council itself. And I ask the question, is the Press Council proactive or simply reactive? I, myself, have been through the process of bringing an issue to the Press Council and I do not believe it is a process that is either inviting or satisfactory to the complainant in many ways. The process is very much in-house. The process is driven by process itself and the process, certainly in my experience, delivers equivocal rather than emphatic outcomes.
And it is not only me who holds this view. I was appalled to see the story written about one of my colleagues, Peter Cosgroves’ family on the front page of a daily newspaper. Peter had departed six months earlier as the Chief of the Defence Force. I will talk about public interest shortly. However, one must question the ‘public interest’ in a story about someone’s family when the person no longer holds a public position. I am told Peter complained to the Press Council. Another journalist working for the same newspaper decided independently to “right the wrong”. The Press Council, I am told, asked Peter whether the issue had been resolved by the subsequent article. But we all know that the subsequent article could not erase the damage caused by the first.
I myself suffered a not dissimilar attack over the Bali 9 case referring to my wife and family. The particular newspaper published an editorial the following day praising me for my work. Does that “right the wrong”? No it does not. But having been through the Press Council experience once in my life there is little or no motivation to try it again.
On police accountability, I will now turn to the introduction of new powers for the AFP to use control orders and preventative detention. I welcome the public debate on this subject. We acknowledge that these are far reaching powers and do not take lightly the responsibilities and obligations that accompany their use. Having said that, our primary objective is to protect the public to the best of our ability from acts of terrorism. Control orders and preventative detention orders provide us with additional tools to use in those efforts. Before I go any further I thought it might be useful to revisit the terms of the legislation.
Control Orders are to be used as a preventative measure when an individual poses a terrorist threat to the Australian community. This is in cases where they cannot be prosecuted either because an offence is not available or the evidence is not admissible or the evidence cannot be used without compromising sensitive operations.
The intention of Control Orders is clear. It is to protect the public from a potential terrorist act. Control Orders do go beyond traditional law enforcement measures of arrest and charge, to allow us to address behaviour of concern and threats to community safety. They are not to be used as a substitute for arresting or charging a person. Another point to note is that these are not orders issued by the AFP. We must first satisfy the Attorney General and then a Court that the Order is reasonable and it is necessary for the purpose of protecting the public from a terrorist act.
I wonder, if on reflection, this explanation of the law to you today is what you recognise as having been the description broadcast by the media of the new terrorist laws?
Some description of the new laws has been sensationalised. For example, reports on what the media labelled “shoot to kill” provisions were highly inflammatory. “Shoot to kill” is a very emotive term but for years now, certainly in the time I’ve been Commissioner of the AFP, the emphasis of police training has not been on shooting. The emphasis has been on de-escalation and providing police with the skills to ensure that the discharge of the firearm is the absolute last option.
The bottom line is that the inclusion of the lethal force provisions in the new legislation merely repeats the power that already exists in every police organisation in this country.
The second point I would like to make about the reporting on the new counter terrorism legislation is the sensationalism surrounding the recall of the Senate. Clearly, I cannot go into detail of the advice provided to the Federal Government nor can I go into the detail about matters that are currently before the Courts in NSW and in Victoria. Having said that, it is difficult, if not impossible to recall the Senate to amend the laws without having some public scrutiny of that activity. The suggestion that the recall of the Senate was in any way related to diverting the attention of the media from other policy matters before Parliament, was ludicrous and in itself completely unfounded. The necessity to comment on the recall of the Senate by the Prime Minister had no bearing on the operational imperatives faced by police.
I’ll repeat my earlier point that how we portray what is happening in these operations is critical to the future recruitment of potential terrorists and is critical to the deprogramming or rehabilitation of persons who have taken on the terrorist mantle.
What we witnessed with the introduction of the new laws is what I will call “public interest hypocrisy”. The Prime Minister was at pains not to go into any operational detail as to why the amendments were needed. Some journalists, needless to say the same ones who denounce police corruption, managed to acquire operational detail through leaks. They claimed they wanted to publish the operational detail because it was in the “public interest”. Why is it in the “public interest”? Surely the public interest in a terrorism investigation is to prevent the act from occurring and provide the best available evidence to the court to convict any alleged participants. The loss of evidence, the fear induced in the minds of the public and the unfair treatment of the accused can never be “in the public interest”.
I’ll repeat that the purpose of the legislation is to protect members of the public and while this could be defined in very simple terms, there are a lot of obligations that may not be immediately obvious. For example, a particular business or brand presents onerous responsibilities for us in terms of what details are provided to the media about ongoing operations. It is not dissimilar to blackmail or extortion offences. Declaring a particular brand, a particular mode of transport, or a particular building as a terrorist target can have enormous impact on share prices, consumer confidence and on consumer use. Some of the new laws bring with them unprecedented responsibilities to not only get it right but to decide what is in “the public interest”.
If I’m sounding a little pessimistic in my views of the current environment, I will move away from terrorism for one moment and discuss the recent Bali 9 case. I am sure this will reassure you of my pessimism… In the Bali 9 case, sections of the media repeatedly reported that Scott Rush’s father had tipped off the AFP and that the AFP had promised to prevent Scott from leaving the country. This was simply not the case.
The AFP was never directly contacted by the Rush family. The AFP made no promises to the Rush family and the AFP investigation into the alleged drug importation was not sparked by a “tip-off’ from the Rush family.
One journalist contacted by the AFP had insisted that affidavits filed in Court stated the police officer contacted by the Rush family was from the AFP. The journalist later admitted that he’d misread the documents, which clearly indicated that the police officer was from the Queensland Police. But of course, by that time the story had already gone to print and it was “too late”.
There were many other misreports on the Bali 9 case despite our continued efforts to correct the record.
Some journalists when contacted by the AFP have told us that errors in their copy had appeared when it was rewritten by a sub-editor or the editor in Head Office, who didn’t check that their amendments were accurate. While some of you may dismiss these examples as unfortunate isolated cases, they do occur with concerning frequency. The lack of accountability or acceptance of responsibility is a real problem that does not augur well for the new powers aimed at preventing terrorism.
Another recent trend has been for defence counsel to run their defence in the media rather than before the Courts. The media offers a convenient stage to enlist public support and inveigle persons in authority to declare their position. The comments should be seen for what they are - an attempt to garner public support. The Corby case was a classic example of defence running their case in the media.
One has to ask oneself, where are the editors, where are the managers of media organisations checking the record? I’m the first one to accept that journalists like police can become very passionate about their brief. In some cases too passionate to a point where they have lost objectivity. Police managers and Courts will often quickly reign in such enthusiasm. Editors, I suggest need to do the same.
Before I move on to the sedition laws, I want to make one more point about the responsibility of editors. There is an important issue in the current climate where criminals are just as interested, if not more interested, than the public in scanning the news media for information about their activities and how they can further their interests. Counter surveillance does occur. Of particular concern recently have been media reports about the methodologies employed by police to track terrorists. As a society, I think we have to ask ourselves, is it responsible journalism to reveal confidential practices being used to track terrorists?
What purpose does it serve to make these practices, that may have taken years for investigators to devise, known to the public and therefore, to terrorists? They are likely to change their methodologies so they can evade detection and capture.
And while the journalists may have thought this was an article about terrorism, the information contained in such an article is open to any criminal to digest and take appropriate action to avoid detection. I cannot begin to tell you how far back such articles set us in our quest to protect the public from a terrorist attack. Media, particularly those in managerial positions, need to weigh up the potential consequences of publishing material that could be detrimental to investigations and ultimately to public safety. Terrorism is a high stakes, high risk environment. It is not just up to the police to keep our community secure, we all have a role to play.
This brings me to sedition. As a result of our counter terrorism operations, the AFP has become aware of the problems created where people urge others to undertake terrorist activity. This is of particular concern as some of the potential people to be influenced are very impressionable. Given opportunities such as the internet, the reach of persons who create websites or who encourage others to become involved in terrorism is multiplied.
When we raised this concern with the Attorney General’s Department, we agreed that the way to deal with the problem was to modernise sedition offences. The sedition offences make it unlawful to urge the use of force or violence where the use of force or violence will threaten the peace or the good government of Australia.
To put it in lay terms, some of you will be familiar with the offence of “consorting”. The offence of “consorting” was created to prevent those who have been convicted of offences from regrouping and planning to commit other crimes. The “consorting” laws have been long overlooked but also long passed is the way in which “consorting” can take place. “Consorting” can now take place over the internet. It can take place with anonymity. This presents a problem where the “consorting” results in the embryonic planning and recruitment for a terrorist attack.
From an AFP perspective, the laws were not directed at the suppression of the media or other forms of free speech.
In conclusion, if John Doyle’s observations are correct that talk-back radio programs are substantially written by the daily newspapers and that the water-cooler drivel as talkback thought starters is what is driving commercial radio today, it suggests to me that getting it right in the newspapers at the outset is absolutely paramount.
I wouldn’t want you to think that the relationship between police and the media is all negative. There are many more positive examples where the media have cooperated and assisted police in their role to safeguard the community. In some cases they have even managed to focus national attention on important issues not receiving the level of attention they deserve. One notable example is the issue of sexual servitude. As a result of a sustained campaign by The Australian newspaper, national awareness of the problem was raised, prompting a whole of government response. More resources are now dedicated to investigating and prosecuting sexual servitude cases and there are improved structures for victim support.
Another positive media example is the cooperation we received during the Bali bombing investigations. Not only did the media assist with maintaining the flow of information to families and friends of the victims but responsible coverage of the joint investigations between the Indonesian and Australian authorities helped improve understanding about Australia’s close relationship with Indonesia.
It also assisted the AFP where the media outlets here in Australia understood the time difference between Indonesia and Australia and the imperative for us in the AFP to ensure that the Indonesian National Police investigation and the announcements of its progress were made first in Indonesia.
Furthermore, I think the media’s interest in the Regional Assistance Mission to the Solomon Islands has played a key role in educating our community about the vulnerabilities surrounding weak states and the spread of transnational crime. This has led, I believe, to a tremendous amount of support for the Mission which is a key factor in its success today.
Before I finish, I’d like to make one final point about another component of the print media that arguably has more potential to influence people’s attitudes than the written word – the cartoon. While we all enjoy intelligent satire, there has to be some ethical boundaries observed. A case in point is a lack of understanding shown by some cartoonists of the role of the AFP when they portrayed us as executioners in the Bali 9 case.
Clearly, the issues of sentencing and penalty are matters for courts and not for police. Cartoonists display a fundamental misunderstanding of that principle when they depict police as the firing squad or hangmen. They also undermine the integrity of police in their role as protectors of the community.
Again, I believe this comes back to editors understanding and taking the responsibility for things that are published.
Some might say that my comments here today are too idealistic. But I’d like to think that I’ve set the record straight in some areas and hopefully advanced our collective understanding of the difficulties in this new environment. I think it is important in an age of spin that we can speak candidly about issues that are integral to our collective safety and security.
I hope that the headlines tomorrow will not declare that Mick Keelty has attacked the media. Instead I would like to think that you see my comments and my presence here today as a genuine attempt to try and build a better understanding of the current environment between the media and the AFP.
Thank you.