Another unlawfully enacted law?
Is this law subject to the "Constitution"?
Have you got what it takes to prove that this law is unlawful (as opposed to illegal)?
Soon after the marriage equality bill passed through the lower house
on December 7,
prime minister Malcolm Turnbull introduced a piece of legislation
ostensibly aimed at countering espionage, treason and foreign
interference. But in reality, the laws have frightening implications for
those who divulge official secrets.
The
National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017
creates a series of draconian laws that aim not only to penalise
Commonwealth officers that leak classified information, but also
criminalises all the steps that go into reporting such information to
the public.
Commonwealth officers are classed as current or former public
servants, members of the defence force or the Australian federal police,
an employee working for a company providing services to the federal
government, or a contractor.
However, the proposed offences apply to everyone. And they would
impose maximum penalties of up to 15 years imprisonment for
communicating government information, or five years behind bars for
merely dealing with it. And an aggravated offence can result in up to 20
years prison time.
If passed, the bill
would insert the new secrecy offences into the
Criminal Code,
under the newly created part 5.6 and division 121. These provisions
replace the wartime offences that currently relate to official secrets
contained in the
Crimes Act 1914.
“Absurdly broad”
Bill Rowlings, chief executive of
Civil Liberties Australia,
explained that the new laws don’t just go after the leakers, like
Chelsea Manning and Edward Snowden, but, they apply to anyone who has
“dealings” with classified material, “including publishers, newspapers
and journalists.”
“Wikileaks would become a criminal organisation under the law,” Mr
Rowlings explained. And “so too, could Sydney Criminal Lawyers should
you happen to report on something that was classified.”
Mr Rowlings noted that information doesn’t have to be classed as
“secret,” or “cabinet in confidence,” but it merely has to be
“classified.”
And given that many public servants have what could be described as a
“pro-classification approach,” Rowlings said the laws could lead to
absurd situations where an individual might be facing prison time for
leaking a “internal staff manual” marked “for official use only.”
Wartime measures
The Parliamentary Joint Committee on Intelligence and Security is
currently inquiring into the Espionage and Foreign Interference Bill.
And its set to report back to the government
by next month.
The Media, Entertainment and Arts Alliance’s (MEAA)
submission
to the inquiry outlines that the legislation significantly broadens the
application of the law beyond current secrecy laws, and this could
result in journalists, editorial staff, support staff, and even legal
advisors, risking prison time.
The current laws regarding official secrets were drafted
in 1914,
after the outbreak of the First World War, by then attorney general
Billy Hughes. The secrecy laws and harsh penalties were enacted due to
fears over German espionage.
Severe penalties already apply
Section 70
of the Crimes Act makes it an offence for a former or current
Commonwealth officer to publish or communicate any government
information without authorisation to do so. The maximum penalty for this
offence is 2 years imprisonment.
Section 79 of the Act outlines a range of crimes regarding official secrets that relate to
any person.
It lists a range of documents and items that can constitute as a
prescribed official secret if it has been provided by an official.
Subsection 79(3) makes it a crime for any individual to communicate
an official secret, or to permit another to have access to it. This
carries a penalty of up to 2 years imprisonment. And an individual who
knowingly receives a secret under these circumstances can also be sent
to gaol for 2 years.
Subsection 79(2) makes it an offence for a person to communicate or
retain an official secret, or to fail to comply with an official
direction regarding one, while this is done with the intention of
prejudicing Australia’s security. This crime carries a maximum penalty
of up to 7 years behind bars.
Subsection 79(5) provides that if any individual knowingly receives
an official secret under circumstances that prejudice national security,
then they’re also subject to a sentence of up to 7 years behind bars.
The PM’s steep new penalties
The attorney general’s office
states
that the new secrecy offences need to be brought in, as the current
ones “are outdated, ineffective and lack appropriately serious
penalties.”
The new legislation would create the offence of communicating
inherently harmful information. This includes information that could
damage national security or defence, is classified information, or
information obtained by a domestic or foreign intelligence agency.
The maximum penalty for divulging this sort of information is 15
years imprisonment. And if an individual has other dealings with such
information, removes it from its proper place of custody, or fails to
comply with an official direction regarding it, then they can be
imprisoned for up to 5 years.
Another new offence, communicating official information that causes
harm to Australia’s interest, can result in 15 years gaol time. And
having other dealings, removing, or failing to comply with an official
direction, in regard to such information, can see an individual sent
away for 5 years.
And the legislation contains a number of aggravating factors that can increase the maximum penalties by up to 5 years.
These include situations where information is classified as “secret”
or marked with the phrase “for Australian eyes only,” an offence dealing
with five or more records, altering classified information, or in cases
where an offender is the holder of an Australian government security
clearance.
A shelved review
As Mr Rowlings pointed out, a review of the existing official secrecy
laws was commissioned by the Rudd government back in 2008. The
Australian Law Reform Commission’s (ALRC)
Secrecy Laws and Open Government in Australia report was released the following year.
The ALRC recommended that the existing laws in the Crimes Act be repealed, as it found them
excessive.
And these provisions should be replaced with a new general secrecy
offence, which would directly protect information that legitimately
needs to be concealed.
It also suggested that regulation 2.1 of the
Public Service Regulation 1999
should specify that a Commonwealth officer must not disclose
information if it is “reasonably likely” to be “prejudicial to the
effective working of government,” rather than the current specification
of “could be prejudicial.”
Toeing the party line
According to Rowlings, the Turnbull government’s further crackdown on
whistleblowers is just more of the same from the Coalition.
The civil libertarian pointed to the Abbott government’s introduction of the
Australian Border Force Act 2015, which initially “criminalised the reporting of abuses on Manus and Nauru by doctors and service providers.”
And Mr Rowlings further outlined that since 9/11, both sides of
government have introduced a total of 65 pieces of counterterrorism
legislation that have gradually eroded Australians’ civil liberties.
These have placed restrictions on freedom of speech, and implemented
mandatory mass surveillance.
When defence is no defence at all
The current secrecy laws provide no defences. However, Turnbull’s
legislation does. These include circumstances where information was
divulged in the interest of the public, or in the case of a journalist,
when information was dealt with or held for the purposes of fair and
accurate reporting.
In its submission, the MEAA points out that the defence for “fair and
accurate reporting” doesn’t actually cover a situation where the
information has been communicated. And it also draws attention to what
constitutes “in the interest of the public” in the bill’s
explanatory memorandum.
In particular, the MEAA said it was vexed by the following passage:
“the extension for the defence to a person who holds information is
intended to enable journalists to perform the important function of
‘filtering’ stories that are contrary to public interest.”
Indeed, it seems that a journalist should be aware of what
information the government takes an affront to, prior to ending up in
the courtroom.
Each little freedom adds up
So, it seems the Coalition is continuing to place further
restrictions on transparency, similar to the initial gag provisions
contained in the Border Force Act, or last year’s
Migration Act amendment, which further strengthened secrecy around intelligence agency and law enforcement information.
And unfortunately, when it comes to federal Labor – unlike its
refusal to pass laws implementing welfare drug testing, or to agree to
conservative amendments to the marriage equality act – when it comes to
national security measures, the opposition just waves them through.
By Paul Gregoire and Ugur Nedim
sydneycriminallawyers.com.au 26 Jan 2018
