Government judge and jury on censorship?

I have now been a book publisher for over 30 years. In all that time my love of books has not diminished, nor my respect for the role that books play in a free and open society.

Having said that, I question the value of books that do not reflect the truth because of some form of censorship. By “censorship” I mean something wider than that term ordinarily implies. I mean any externally imposed sanction on speech, backed by the force of the state - including the law. Whether that sanction comes before or after publication.

I am not saying that there should be no limitation to what can be published without fear of legal sanction. Rather I propose the importance of asking the question - "Is the censorship justified?" - in each and every case where the law, or its enforcers, attempt to curtail free speech.

One recent case, in which I was personally involved, was last year’s attempt by the Federal Government to censor a book I was intending to publish. The book was Axis of Deceit by whistleblower Andrew Wilkie. A book of this nature was bound to be controversial, so we at Black Inc. sought the advice of a Canberra lawyer with military and intelligence experience. A week later, we received a fax from the Attorney General’s Department informing us that the manuscript was in their possession - our lawyer had given it to them without telling us! In our view, this was extraordinary and unprofessional behaviour.

The manuscript was circulated to the various intelligence agencies for vetting. A small delegation of senior personnel from the Attorney General’s office and the Office of National Assessments came to Melbourne to negotiate cuts and edits.

A small team of computer experts was then sent to the Black Inc. office to cleanse the offending material from our computers. They transferred the data to a hard disk then gave us the option of having it taken away or destroyed in front of us. We chose the second option, then watched them do it with a special little disk-breaking hammer. They graciously followed up this service with a customer satisfaction form.

There is no doubt that Wilkie’s manuscript was political dynamite in an election year. Our concern was that the intense interest in it by the Government was likely to be politically motivated.

This did not turn out to be the case. I can absolutely state that we weren’t asked to make any changes of a political nature. The minor deletions were all bona fide and logical. They clearly related to legitimate security issues and we agreed to them willingly.

If that was the result, why even bother asking this question - "Is the censorship justified?" Should we not simply trust those our society has empowered to sort out these matters - trust them to make these decisions for us? Namely, the politicians we have elected to represent us, and the law enforcement officers and bureaucrats they instruct?

The answer to that question is an emphatic no. That’s not because we are necessarily suspicious of those who wield the power of the state - although that can come into it. Even where we do have basic faith in the judgment and probity of those in power, there must be checks and limits imposed on that power.

As citizens, we need to be involved in questions of freedom and democracy. Citizenship, like democracy, is as much about process as it is about status. Citizenship and democracy bring rights, but also responsibilities. Citizenship and democracy are like muscles. Without activity, without use, they turn flabby and eventually atrophy.

The political philosopher Karl Popper explored similar notions in his classic work Open Society and Its Enemies. Popper criticised what he termed “unmitigated authoritarianism”. He proposed an open society which confronts its members with personal and political decisions, and the opportunity to reflect rationally on them. He denounced “the moulding of minds and of souls” which “become, by long habit, utterly incapable of doing anything at all independently”.

Popper was writing during World War II. Then, as he crisply put it, “it was not the time to mince words”. He was writing in the face of the two great and unmitigated authoritarianisms of the 20th century - Nazism and Stalinism. Today, I am not speaking so directly in their face, but am painfully cognisant of their legacy.

Lessons from that time must include the realisation that open society is a question of degree. We must remember that the degree of openness of any society is not necessarily fixed across time - and that we need to work at maintaining the liberties vital to open society. These liberties include freedom of speech.

Applying these lessons to contemporary Australia, we must acknowledge that we are mercifully free of the kind of state-sponsored crackdowns on political dissent that form one hallmark of totalitarianism. Those lessons remind us, however, that the Wilkie case could have played out very differently - for me, my staff, my business, the author, and of course the book itself. In fact, it did not.

We must acknowledge this gap between possibility and reality - even as we exercise our democratic muscle as citizens, by asking whether this (or any other) instance of censorship is justified.

Returning to the lawyer who sent the Wilkie manuscript to the government without asking or telling us - this unexpected sideshow turned out to be the insidious face of the whole affair. We formally complained to the ACT Law Society, alleging this lawyer had breached his obligations to us. After a lengthy process, the Law Society found in the lawyer’s favour. It concluded that:

His obligations of confidentiality were subject to the “public welfare” exception, which permits disclosure of a confidence if non-disclosure might jeopardise national interest … On the available material, it was open for him to so conclude and it appears that he bona fide held such a belief. In those circumstances, any breach of confidence involved in disclosing the manuscript to the Attorney General’s Department was justified in law.

Black Inc. is considering an appeal.

From the outset, the publication of the Wilkie book posed a serious challenge. How could we know if the manuscript contained information that might threaten national security? We could not find one Melbourne lawyer who could advise us on this question. So we consulted Dr David Wright-Neville, a Monash academic and former analyst at the Office of National Assessments (the same intelligence agency that had employed Wilkie).

Wright-Neville read the manuscript and proposed cutting a dozen or so passages. These changes were acceptable to both Wilkie and Black Inc. We were now reasonably confident that nothing in the manuscript would threaten national security, but given the nature of the project and the fact Australia was in a kind of state of war, we sought a second opinion. After many inquiries, we decided to seek advice from that Canberra lawyer I mentioned earlier.

Now, this is the crux of the problem. What is a publisher to do if there is a possible breach of national security in a manuscript? Does he go straight to the attorney general? This doesn’t feel right. It opens the gates of unfettered power to government, diminishing open society. So to whom do we go?

Clearly now, not to some members of the legal profession, who will pass it straight on to government. There is a tension here between the interests of national security and robust democracy. There must be a way to adjudicate this balance, without allowing the government to be both judge and jury.