Trusting the government to protect civil liberties? That’s a sick joke
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, Change.org: 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 Change.org 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.