Government judge and jury on censorship?

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.