Trust­ing the govern­ment to pro­tect civil lib­er­ties? That’s a sick joke

The Guardian Australia - - News - Claire O'Rourke, Paul Oost­ing, David Rit­ter, Su­nita Bose and Han­nah Ryan

Civil so­ci­ety groups and me­dia or­gan­i­sa­tions are rais­ing alarms bells about two bills the govern­ment is hop­ing to get passed be­fore the by­elec­tions in July.

A bi­par­ti­san deal was reached last week to pass amended leg­is­la­tion to tar­get se­cret at­tempts by for­eign spies to in­flu­ence Australia’s politi­cians and me­dia (the es­pi­onage and for­eign in­ter­fer­ence bill), and on a sec­ond bill forc­ing in­di­vid­u­als and com­pa­nies act­ing on be­half of for­eign pow­ers to be listed on a pub­lic reg­is­ter (the for­eign in­flu­ence trans­parency scheme bill).

We asked five non-govern­ment or­gan­i­sa­tions about their ma­jor con­cerns.

Claire O’Rourke, Amnesty In­ter­na­tional Australia: We need clear ex­emp­tions for civil so­ci­ety

The es­pi­onage and for­eign in­ter­fer­ence bill ap­pears to be a bald­faced at­tempt by both sides of pol­i­tics to hide from the scru­tiny of Aus­tralian civil so­ci­ety – and moves us closer to­wards an in­creas­ingly au­thor­i­tar­ian Australia.

The bill must be amended to pro­vide clear ex­emp­tions for civil so­ci­ety, so char­i­ties can con­tinue to hold the govern­ment of the day ac­count­able, with­out fear of pros­e­cu­tion or im­pris­on­ment.

Fol­low­ing the re­lease of amend­ments to the bill, both at­tor­ney gen­eral Chris­tian Porter and shadow at­tor­ney gen­eral Mark Drey­fus tried to fob off char­i­ties’ con­cerns, ef­fec­tively say­ing “there’s noth­ing to see here”.

Wit the bill in its cur­rent form it could be­come a crime for char­i­ties, in­clud­ing Amnesty, to hold the Aus­tralian govern­ment to ac­count on its hu­man rights record.

Amnesty’s core work is to ex­pose hu­man rights abuses in all coun­tries. These rights vi­o­la­tions of­ten have not pre­vi­ously been made pub­lic – that’s ex­actly the point.

There­fore, politi­cians’ claims ring hol­low that NGOs would sim­ply need to use the “prior pub­li­ca­tion” de­fence in or­der to be spared the crim­i­nal charges out­lined in this bill.

Hu­man rights ad­vo­cates also hold the Aus­tralian govern­ment to ac­count by reg­u­larly re­port­ing to United Na­tions bod­ies on Australia’s progress in meet­ing in­ter­na­tional le­gal obli­ga­tions – in­clud­ing on Australia’s breaches of in­ter­na­tional law.

But un­der this bill, it may be­come a crime to com­mu­ni­cate with the UN in this way.

If the govern­ment doesn’t intend to pros­e­cute civil so­ci­ety for these new of­fences, why are they in­cluded in the bill at all?

Even if pros­e­cu­tions aren’t car­ried out, the mere threat of them could have the ef­fect of si­lenc­ing civil so­ci­ety.

The UN spe­cial rap­por­teur on the right to pri­vacy ex­pressed con­cerns the bill would have a neg­a­tive ef­fect on hu­man rights and the pub­lic’s abil­ity to ac­cess in­for­ma­tion. And in­deed, even with the lat­est amend­ments, this bill does con­tra­vene the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights, and re­stricts our im­plied right to freedom of po­lit­i­cal ex­pres­sion.

Paul Oost­ing, GetUp: Trust­ing the govern­ment to pro­tect civil lib­er­ties? That’s a sick joke

Civil lib­er­ties are a com­mon ca­su­alty of na­tional se­cu­rity mea­sures, but rarely are they as bla­tantly op­pres­sive as the Turn­bull govern­ment’s pro­posed es­pi­onage laws. This bill is so dra­co­nian that it has been dif­fi­cult to con­vince peo­ple of the plain mean­ing of the text.

So let’s break down pre­cisely what this bill means. Un­der new es­pi­onage of­fences, a per­son – be it a jour­nal­ist or just a con­cerned cit­i­zen – could be im­pris­oned for re­port­ing on breaches of in­ter­na­tional hu­man­i­tar­ian law by the Aus­tralian govern­ment in off­shore de­ten­tion fa­cil­i­ties.

Protesters who tem­po­rar­ily block­ade a rail­way to an ex­port coal mine could face 20 years be­hind bars for “sab­o­tage”. An aid worker who con­sults with, for in­stance, the UN refugee agency to de­velop a sub­mis­sion to a Par­lia­men­tary Com­mis­sion could be found guilty of “for­eign in­ter­fer­ence” and face 15 years be­hind bars.

Our democ­racy de­mands freedom of speech so that we can hold our govern­ment ac­count­able – our con­sti­tu­tion re­quires as much. These far-reach­ing laws threaten our mil­lion mem­bers with long prison sen­tences for tak­ing to the streets. And even if never pros­e­cuted, this bill gives the green light to the govern­ment to surveil its cit­i­zens for at­tend­ing such a protest (and don’t for­get, the govern­ment is push­ing fa­cial recog­ni­tion laws to al­low it to im­me­di­ately record peo­ple’s iden­ti­ties from footage of protests).

These le­gal re­al­i­ties are not con­tentious. In the par­lia­men­tary com­mit­tee’s re­port, both ma­jor par­ties ad­mit­ted them, but re­solved not to make the sim­ple changes re­quired to pro­tect Aus­tralian cit­i­zens from gross gov­ern­men­tal over­reach.

In­stead, we’re told to re­lax. Lib­eral and La­bor MPs say the at­tor­ney gen­eral has veto power over pros­e­cu­tions and will choose not to pros­e­cute jour­nal­ists and com­mu­nity groups.

Ask­ing Aus­tralians to trust this govern­ment to safe­guard the civil lib­er­ties of its crit­ics, when it is do­ing ev­ery­thing it can to si­lence them, is a sick joke. Speak­ing for fu­ture gov­ern­ments is even more treach­er­ous.

David Rit­ter, Green­peace Australia Pa­cific: Australia needs more democ­racy, not less

The rich­ness of Aus­tralian democ­racy and the fair­ness of our so­ci­ety has been built on gen­er­a­tions of peace­ful protest and our abil­ity to ef­fec­tively hold power to ac­count.

From the flow­ing wa­ters of the Franklin River, to univer­sal suf­frage for women; from the rights of work­ers to or­gan­ise, to cit­i­zens speak­ing out against ve­nal politi­cians; from land rights, to queer rights; Australia has made so­cial progress on the back of prin­ci­pled protest and whistle­blow­ing.

But our coun­try is still on a jour­ney. While there is no ef­fec­tive ac­tion on global warm­ing, while politi­cians are in ca­hoots with multi­na­tional coal com­pa­nies, while refugees lan­guish in in­def­i­nite de­ten­tion and on a host of other is­sues, we have work still to do as a na­tion.

It is in this context that we have to view these two bills along with the for­eign do­na­tion leg­is­la­tion that the govern­ment has in­tro­duced which could have the ef­fect of se­ri­ously im­ped­ing the demo­cratic work of civil so­ci­ety groups – and in some cases crim­i­nalise peace­ful ac­tiv­ity that is un­der­taken by in­di­vid­ual Aus­tralians to hold the po­lit­i­cal elites to ac­count.

What is pro­posed in these bills could re­sult in some forms of peace­ful and cre­ative protest be­ing crim­i­nalised as “sab­o­tage” and in­fringe on the ba­sic demo­cratic rights of Aus­tralians to tell our politi­cians that they are not do­ing a good enough job.

Mea­sures that are cur­rently un­der con­sid­er­a­tion could se­ri­ously im­pede the prac­ti­cal abil­ity of Aus­tralian civil so­ci­ety or­gan­i­sa­tions to en­gage in or­di­nary com­mu­ni­ca­tions with in­sti­tu­tions like the United Na­tions, or other in­ter­na­tional bod­ies on global is­sues like cli­mate change, nuclear dis­ar­ma­ment and in­ter­na­tional devel­op­ment. As they stand, the bills could have the re­sult of crim­i­nal­is­ing whistle­blow­ing on breaches of in­ter­na­tional law as es­pi­onage.

These bills rep­re­sent the over­reach of a govern­ment that is demon­stra­bly in­tol­er­ant of rea­son­able demo­cratic dis­sent. In 2016, the UN spe­cial rap­por­teur on hu­man rights de­fend­ers, Michael Forst, said he was “as­ton­ished to ob­serve mount­ing ev­i­dence of a range of cu­mu­la­tive mea­sures that have con­cur­rently levied enor­mous pres­sure on Aus­tralian civil so­ci­ety”. Ear­lier this year UN of­fi­cials warned the fed­eral govern­ment that some of the pro­posed changes to na­tional se­cu­rity laws mooted in drafts of the pro­posed leg­is­la­tion would im­pose “dra­co­nian crim­i­nal penal­ties” on freedom of ex­pres­sion and could po­ten­tially be “in­con­sis­tent” with in­ter­na­tional treaty obli­ga­tions.

When our lead­ers fall short or break the law they must be held to ac­count and this pro­posed raft of leg­is­la­tion would risk the si­lenc­ing of crit­i­cal voices. What Australia needs is more democ­racy, not less.

Su­nita Bose, These laws will si­lence ev­ery­day peo­ple

At­tor­ney gen­eral Chris­tian Porter claims new for­eign in­ter­fer­ence laws will pre­vent the “cor­ro­sion of our demo­cratic sys­tem”. The truth is, the pro­posed bills threaten what they aim to pro­tect: the demo­cratic free­doms of ev­ery­day Aus­tralians.

The in­cred­i­bly broad def­i­ni­tion of “na­tional se­cu­rity” in the es­pi­onage bill means the at­tor­ney gen­eral can tech­ni­cally ar­gue com­mu­nityled cam­paigns harm trust, eco­nomic and po­lit­i­cal re­la­tions with other coun­tries.

Of course, the govern­ment may as­sure you that they would never pros­e­cute such cases, but sim­ply hav­ing these dra­co­nian laws in place will pre­emp­tively stop peo­ple who want to fight for their cause be­cause they could face crim­i­nal charges.

Is this re­ally hap­pen­ing here in Australia? It is, and the US, UK and Ger­many are watch­ing this as one of the first pol­icy in­ter­ven­tions to ad­dress for­eign po­lit­i­cal in­ter­fer­ence. Let’s hope the less demo­cratic coun­tries aren’t watch­ing too, as these laws give the state ex­traor­di­nary power to crim­i­nalise dis­sent and si­lence cit­i­zens’ voices.

Among the wider pack­age of leg­is­la­tion, the govern­ment’s for­eign in­flu­ence trans­parency scheme bill would re­strict Aus­tralians who bring global sol­i­dar­ity to a na­tional is­sue, like when peo­ple from around the world joined the cam­paign to suc­cess­fully end Australia’s ar­chaic law that al­lowed peo­ple to use “gay panic” as de­fence for mur­der.

Open, non-par­ti­san plat­forms like ex­ist so or­di­nary peo­ple can have a say about de­ci­sions be­ing made about their lives. But that’s set to be re­stricted un­der the elec­toral re­form bill, which makes it hard for us and any or­gan­i­sa­tion con­nected to an in­ter­na­tional arm to host po­lit­i­cal speech.

Peo­ple power should not fall ca­su­alty to re­strict­ing for­eign in­flu­ence over par­lia­ment. Our laws must be bet­ter than this. They must pro­tect the im­por­tant role Aus­tralians play in shap­ing pol­icy from the ground up. The govern­ment and La­bor need to ur­gently in­tro­duce stronger safe­guards for cam­paign­ing in these bills, or risk si­lenc­ing Aus­tralians who par­tic­i­pate in our democ­racy.

Han­nah Ryan, Hu­man Rights Law Cen­tre: Don’t crip­ple the demo­cratic pro­cesses we should be pro­tect­ing

The laws pro­posed to par­lia­ment pose an un­ac­cept­able threat to Aus­tralians’ freedom of ex­pres­sion and the freedom of the press. They would make it harder, and more dan­ger­ous, for peo­ple to in­ves­ti­gate and share in­for­ma­tion about po­lit­i­cal mat­ters. They would make it eas­ier for govern­ment to shut down un­com­fort­able dis­clo­sures, and pre­vent them hap­pen­ing in the first place.

A healthy democ­racy must en­sure that steps taken to deal with for­eign es­pi­onage don’t crip­ple the demo­cratic pro­cesses we should be pro­tect­ing: our right to com­mu­ni­cate freely on po­lit­i­cal mat­ters, to protest, and to hold our govern­ment ac­count­able.

In the past six months, a sig­nif­i­cant ef­fort from civil so­ci­ety and the press has won some im­por­tant com­pro­mises to the govern­ment’s pro­posed laws. Sug­gested amend­ments would leave the se­crecy of­fences in bet­ter shape than what was, frankly, a pro­posal not fit for a de­cent democ­racy. The jour­nal­ist de­fence has been im­proved, the in­for­ma­tion cap­tured has been nar­rowed, and penal­ties rec­om­mended to be brought down from 20 to seven years.

But our par­lia­ment has some way to go be­fore this bill is fit to pass. The se­crecy of­fences still go too far by crim­i­nal­is­ing “deal­ing” with (in­clud­ing re­ceiv­ing or pos­sess­ing) in­for­ma­tion, not just dis­clo­sure. Whistle­blow­ers aren’t suf­fi­ciently pro­tected, and those out­side govern­ment are caught up in the regime even when they haven’t vi­o­lated any re­quire­ment of con­fi­den-

tial­ity or known about any wrong­do­ing.

But per­haps more con­cern­ing now are the es­pi­onage of­fences, which pe­nalise the shar­ing of in­for­ma­tion that “con­cerns” Australia’s “na­tional se­cu­rity” (which in­cludes our eco­nomic re­la­tions with other coun­tries) whether clas­si­fied or not. Some of the of­fences don’t re­quire any harm to re­sult from the shar­ing of in­for­ma­tion – it might be enough that the in­for­ma­tion was “made avail­able” in­ter­na­tion­ally. Alarm­ingly there’s no de­fence for jour­nal­ists; in fact, there’s no pub­lic in­ter­est de­fence at all. De­fen­dants face up to life in prison.

This kind of leg­is­la­tion only makes sense if you main­tain a blink­ered fo­cus on the threat of for­eign in­ter­fer­ence (whose de­tails the pub­lic is not privy to), and lose sight of all of the vi­tal, ben­e­fi­cial and be­nign ac­tiv­ity that will also be swept up into a crim­i­nal regime car­ry­ing the most se­ri­ous penal­ties un­der our law.

The irony of the ar­gu­ment that these laws will pro­tect our democ­racy is the lack of care given to the fun­da­men­tals of our democ­racy. It would be op­ti­mistic to put these broad of­fences on our books and as­sume that the ac­tiv­i­ties that give Aus­tralian democ­racy its char­ac­ter – world-class in­ves­tiga­tive jour­nal­ism, a ro­bust pub­lic dis­course, in­ter­na­tional co­op­er­a­tion – will con­tinue un­ham­pered. If we end up chill­ing the le­git­i­mate flow of in­for­ma­tion in Australia, then we’ll be re­spon­si­ble for our own de­te­ri­o­rat­ing democ­racy – not any­body else.

Pho­to­graph: Lukas Coch/AAP

‘When our lead­ers fall short or break the law they must be held to ac­count and this pro­posed raft of leg­is­la­tion would risk the si­lenc­ing of crit­i­cal voices’

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