Proposed changes to Australia’s official secrecy laws a threat to democracy, say human rights and media organisations
Government whistleblowers and journalists who report on leaked information could face 20 years’ imprisonment if changes to Australia’s official secrecy laws pass parliament.
The overhauled offence provisions, introduced to the House of Representatives in December just hours after marriage equality became law, form part of the Coalition government’s broader crackdown on treason, espionage and foreign interference. If passed, the reform will increase tenfold the maximum penalties for anyone communicating information potentially harmful to the national interest, where that information is obtained via a government official without authorisation.
“This is ‘creeping Stalinism,’” said Ethicos Group specialist Howard Whitton, who has advised governments and the United Nations ethics office on whistleblower policy. “The absolute protection of principled disclosure of wrongdoing – unfettered by government – must be preserved, or Australia will become a laughing stock internationally.”
Despite the draconian nature of such wartime provisions, that legislation has remained law in Australia over the following century with only minimal amendment. In 2008, the Rudd government asked the Australian Law Reform Commission to hold an inquiry, which resulted in modest reform proposals in its report Secrecy Laws and Open Government in Australia.
“Reform of Australia’s secrecy laws is long overdue,” said Hugh de Kretser, executive director of the Human Rights Law Centre. “After a careful and comprehensive review, the ALRC concluded that our secrecy laws were excessive and needed to be better targeted to protect legitimate government interests. Instead of acting on the ALRC’s recommendations, the Abbott government intensified our secrecy laws with the introduction of the Australian Border Force secrecy provisions and expansive Asio secrecy laws.”
That trend looks set to continue. The proposed legislation criminalises communicating or otherwise dealing with information where that information was obtained by a public servant and is “inherently harmful” or likely to harm “Australia’s interests”. The former is defined as including any information produced by a security agency, while the latter includes prejudicing Australia’s international relations “in any way” or damaging relations between the federal government and a state.
“These broad definitions, coupled with penalties of up to 20 years in prison, raise serious risks of stifling the free flow of information and leaving Australian people ignorant of important matters in the public interest,” de Kretser said. “Open government is a foundational principle of democracy. Australians have a right to know what their government does in their name. Of course, some information must remain secret to protect our security and national interests. But these proposed laws have not got the balance right.”
The new provisions are primarily directed at commonwealth officers, defined to include current and former public servants, contractors, defence force personnel and employees of businesses who provide services to the federal government. But the expansive wording of the offences means any person who comes into contact with information obtained by a commonwealth officer could fall within the legislation’s scope.
These aggravation provisions appear intentionally designed to target Edward Snowden-type leakers. The bill’s explanatory memorandum even provides an example strikingly similar to the Snowden case, a contractor who leaked extensive American intelligence information to the Guardian and other publications. “Person A is employed as an IT systems administrator at a commonwealth government intelligence agency,” the explanatory memorandum hypothesised. “Throughout his employment Person A copied 1,000 electronic files from the agency’s internal holdings to a personal hard drive … Person A publishes all 1,000 documents on the internet.”
This impetus for the new offences mirrors that of stalled attempts to reform official secrecy laws in the UK, which were described last year by Open Rights Group chief executive Jim Killock as “a full-front attack … squarely aimed at the Guardian and Edward Snowden.”
“The suggested changes take the wrong lessons from the Snowden and other revelations, and ignore the reality of the connected, global information environment in which we now live,” said Gill Phillips, director of editorial legal services at Guardian News and Media. “If public interest journalism is made harder or even criminalised, there is a real risk that whistleblowers will bypass responsible journalists altogether, and simply anonymously self-publish data leaks online, without any accountability.”
“The explanatory memorandum states that journalist protections are lost if they are not engaged in what is deemed to be ‘fair and accurate reporting’ and in circumstances where it is alleged their reporting is ‘distorted,’” he said. “The protection is entirely unavailable if the subject matter is said to not be in the public interest. This is a very broad term.
“A further issue is the definition of ‘journalist’ used in the bill. The MEAA acknowledges that this definition covers journalists not regularly employed in a professional capacity and may include a person who self-publishes news or news analysis, but anchoring the definition of journalists to the dictionary meaning could well prove a mistake down the track and lead to legitimate coverage being excluded from the bill’s modest protections.”
The proposed legislation additionally provides that the public interest test will not be met where the information concerns the identify of intelligence officers, or if the journalist’s conduct could endanger public health or safety. The draft statute is also ambiguous about the legal test to be applied: whether the reporting must objectively be in the public interest or whether it is sufficient for the journalist to reasonably believe it to be so.
Public servant whistleblowers will not enjoy the benefit of a public interest defence. While the offences are not applicable where the information is disclosed through appropriate channels via the Public Interest Disclosure Act, the federal whistleblower protection scheme, that law has often been criticised as ineffective and is awaiting reform.
The approach taken in the proposed reform, according to Murphy, “ignores the inherent weaknesses of these laws to protect complainants and preserve their rights. These changes represent a substantial threat to whistleblowers and journalists who seek to publish critical public information. Whistleblowers in Australia get punished; it is as simple as that. Laws like these create further disincentives for people who witness wrongdoing and corruption to air their concerns.”
“This is a corruption issue, not a free speech issue,” added Whitton. “Australia is at serious risk of state capture if whistleblowers are not protected.”
A spokesperson for the Attorney General’s Department said: “The government is committed to striking the right balance between openness and transparency in government and the legitimate need to protect some commonwealth information.
“Protecting Australia from espionage and foreign interference relies heavily on having strong protections for our information, especially where disclosure causes harm to an essential public interest. The unauthorised disclosure or use of certain information can prejudice national security and defence, or our relationships with other countries, and as such criminal offences are necessary to deter such disclosures and punish them if they do occur.”
The Commonwealth Ombudsman’s office said: “Given that unauthorised disclosures do not receive protection for disclosers, the ombudsman encourages public officials to make their disclosures in accordance with the Public Interest Disclosure Act.”
The Australian Public Service Commissioner John Lloyd declined to respond to stakeholder criticism of the proposed law. The Parliamentary Joint Committee on Intelligence and Security is accepting submissions on the proposed legislation until 22 January.
6 thoughts on “‘Creeping Stalinism’: secrecy law could imprison whistleblowers and journalists”
journalists & whistle blowers will have to give the information over to international colleagues & organisations – to be released as anonymous expose’s.
It seem that Victorian Public Hospitals no longer provide wheelchair to their mobility challenged outpatients.
Crawl ….is the sentiment from the hospital genera.
When visiting a Victorian Public Hospital it might also be prudent to bring along – a bucket with a tight fitting lid – a few sheets of toilet paper – bottled water & paper towels.
In case you need the toilet.
Our Malcolm Turnbull has the gift of looking beyond the basic needs of Australia.
WHAT’s WRONG WITH AUSTRALIA?
Is this MOVE to SECURITY a knee jerk reaction to International Investment giving Australia a wide berth.
The talking down of Australia has wreaked havoc in attracting International Investment dollars.
I am talking billions here.
Internationally, we are seen as a bunch of, White Man, up ourselves, incompetent, “oh, look at me & see that I am a somebody” , no hopers.
Our hospital are run by academic & medical Blue Bloods steeped in tradition & lethargy.
To them a hospital is a place where they can flounce around like gods of all things – while pulling an extravagant salary.
Doctors & nurses are extravagantly overpaid – while Australia has 2 & 1/2 more medical professionals that we need & all of them are on the payroll.
A hospital – public or private is a place of BUSINESS.
An Expensive – MULTIFACETED – MONEY EARNING BUSINESS.
An Efficient Healthcare Service Delivery System.
No one will invest in Australia Aristocracy for its own sake.
It no longer matters if you are a graduate from Melbourne Grammar & what your family name is.
The Efficient Delivery of SERVICES Realising PROFIT is what International Investment dollars are after.
SAFE HEALTH CARE is what International Investment dollars are looking for.
INVESTORS are not about HEMORRHAGING their valuable INVESTMENT MONIES AWAY.
The new Heart Complex in Croydon is about attracting foreign patients looking for safe & affordable healthcare solutions.
Not botched operations by Laughing FatBoy types who think its funny to mutilate their patients.
It is not the media & whistleblowers that have ‘squealed’ & Australia’s reputation is ZERO minus.
It is those who came & saw
The bullshit that is Australia’s business ethic
The bullshit that is Australia’s work ethic
The lack of respect & pride in Australia as a place of excellence.
All we have here are gods flouncing around.
This is what is driving this SECURITY DRIVE.
Botched Business Practice that has driven International Business away.
Money is the root of all bullshit.
Australia need to return to a compulsory retirement age of 60 years.
We desperately need to get rid of the dead wood.
Before we go under for the third time.
The Seekers of the Fountain of Youth:
A cardiac nurse:
“How old do you think she is?” I asked.
“About 30,” replied my sister.
“Try 55 plus,”
“Where did you see that?”
She is wearing a top just over her thighs, with scalloped edging – OLD FASHIONED
She is wearing lipstick that matches the color of her top – The Doris Day Look.
Buyer beware – cougar on the loose.
Wolf Street – The Oligopolization of Food Supply Hits a Snag by Don Qiujones.
The union with Bayer & Monsanto:
Are bayer & Monsanto going broke?
Is it that these two companies must amalgamate or perish?
It could be that the days of wine & roses are over for Bayer & Monsanto.
Nothing lasts forever – hey.
Creeping Slalinism or creeping Fabianism, two hats on the same Communist head.
Five of our PM’s were Fabians-Whitlam, Hawk, Keating, Rudd, Gillard along with many hidden influences in our government that in true Fabian philosophy secretly represent the wolves in sheep clothing.
Quote from George Bernard Shaw on Fabianism.
“under Socialism, you would not be allowed to be poor. You would be forcibly fed, clothed, lodged, taught and employed whether you like it or not. if it were discovered that you had not character and industry enough to be worth all this trouble, you might possibly be executed in a kindly manner, but whilst you were permitted to live, you would have to live well.”
In the ultimate ‘nanny State’, with no free will or right to choose, you are owned by the elites and discarded when you are no longer any use.