In the name of combating foreign interference
Australia’s new secrecy laws block exposure of government
crimes
By Mike Head
14 July 2018
Under the cover of outlawing so-called improper foreign
influence in Australia, the Espionage and Foreign Interference (EFI) Act pushed
through parliament last month contains 12 new or expanded secrecy offences.
These are specifically designed to criminalise the exposure
of abuses—especially war crimes and human rights violations—committed by
Australian governments and their US partners.
The laws can outlaw reporting on everything from the SAS
killings of civilians in Afghanistan to the torture-like treatment of refugees
in Australia’s Pacific island detention camps.
Terrified of growing unrest, hostility toward capitalism
and opposition to war, the Australian government is seeking to block access,
especially via the Internet, to critical information that the public has the
right to know.
Above all, the targets are whistleblowers and journalists
such as WikiLeaks editor Julian Assange and former US National Security Agency
(NSA) contractor Edward Snowden. They helped alert the world’s people to the
atrocities, regime-change operations and mass surveillance of Washington and
its military-intelligence allies.
Anyone who assists individuals to reveal such crimes, or
reports their exposures, including writers and publishers on progressive,
left-wing or anti-capitalist media outlets, can now face lengthy imprisonment.
This is on top of a raft of secrecy laws imposed over the
past decade to outlaw reportage of secretive operations by the spy services,
identification of undercover intelligence agents and disclosures about the
treatment of refugees by the militarised Australian Border Force.
The latest secrecy laws are a crucial element in the
anti-foreign influence laws being imposed by Prime Minister Malcolm Turnbull’s
government, with the opposition Labor Party’s bipartisan backing, to suppress
dissent amid intensifying US-led preparations for war against China.
In an extraordinary June 8 radio interview, Andrew Hastie,
who chairs the Parliamentary Joint Committee on Intelligence and Security,
pointed to the real thrust of the measures.
Hastie, a member of the Liberal-National Coalition
government and former SAS officer, said Australia’s role in the US-led Five
Eyes intelligence alliance made the country a “soft underbelly” for
authoritarian regimes “seeking to get secrets from the United States.”
Australia’s spy and electronic surveillance agencies, which
monitor the highly strategic Indo-Pacific region, are a key link in Five Eyes
network with the NSA and its counterparts in Britain, Canada and New Zealand.
Hastie told Australian Broadcasting Corporation radio:
“What we can’t have is radical transparency.” Questioned on what he meant by
that, he said: “Radical transparency is Julian Assange dropping a whole bunch
of Commonwealth secrets out for public consumption.”
Hastie, having received closed-door intelligence
“briefings” in Washington, along with other members of his committee, was
drumming up the agitation by the government and the intelligence agencies for
the rapid passage of the legislation.
His remarks underscored the intense pressure being applied
to the Turnbull government by the US military-intelligence establishment to
pass the legislation and step up its commitment to the US military
confrontation with China, Australian capitalism’s largest export market.
Hastie’s comments also highlighted the fact that the laws
target any independent investigatory journalism that endangers ruling class
interests, especially by laying bare government war plans, lies and propaganda.
The new secrecy offences go significantly beyond the old
Crimes Act official secrets laws, which they replace.
First, they have a wider scope. Instead of banning the
disclosure of secret documents—either classified, “prescribed” or relating to
“prohibited places”—they outlaw divulging “inherently harmful information” or
material that “is likely to cause harm to Australia’s interests.”
“Inherently harmful information” covers classified
material, information obtained by the Australian and allied intelligence
agencies, and information relating to the operations of the Australian or
foreign law enforcement agencies. Thus, for example, WikiLeaks’ publication of
files exposing the CIA’s computer hacking activities is now a serious crime in
Australia.
“Cause harm to Australia’s interests” is even more
sweeping. It includes to “harm or prejudice the health or safety of the
Australian public or a section of the Australian public” or “harm or prejudice
the security or defence of Australia.” This extends to information that
supposedly endangers any Australian person or threatens the country’s
anti-refugee operations or the profit interests of Australian companies.
The EFI Act defines “national security” to include
“protection of the integrity of the country’s territory and borders from
serious threats” and “the country’s political, military or economic relations
with another country or other countries.”
Second, the new laws apply to everyone, not just internal
whistleblowers, as the Crimes Act offences did. The EFI Act outlaws not just
leaking, but “dealing with” information. “Deal with” is defined to cover a long
list of activities: “collect,” “possess,” “make a record of,” “copy,” “alter,”
“conceal,” “communicate,” “publish” and “make available.”
“Make available information” includes “place it somewhere
it can be accessed by another person,” “give it to an intermediary” and
“describe how to obtain access to it, or describe methods that are likely to
facilitate access to it (for example, set out the name of a website, an IP
address, a URL, a password, or the name of a newsgroup).”
In other words, whoever is sent information, and therefore
automatically possesses it, can be convicted, as can individuals associated
with WikiLeaks or any other platform that is set up to anonymously receive
material from whistleblowers.
Third, the new laws particularly target non-corporate media
websites by providing a limited defence for people “engaged in the business of
reporting news, presenting current affairs or expressing editorial or other
content in news media.”
According to the explanatory memorandum attached to the
act, this defence is confined to the staff of “media organisations.”
The defence is highly conditional. It only applies if the
individual “reasonably believed” that dealing with the material was “in the
public interest.” These terms are not defined, leaving the way open for
politically selective prosecutions. Who decides what is “reasonable” and what
the “public interest” is?
Anyone claiming the defence also bears an “evidentiary
burden” of proving it, undercutting the centuries-old requirement for the
prosecution to prove guilt “beyond a reasonable doubt.”
In addition, the “reasonable belief” defence does not apply
to material that identifies an intelligence agent or a person in witness
protection program, or that “directly or indirectly” assists a foreign
intelligence agency or military organisation.
However, media companies that cooperate with the
intelligence apparatus in censoring sensitive material to remove any damning
information are likely to be protected as acting “reasonably” in the “public
interest.”
The Crimes Act penalties have been substantially increased,
up to 10 years for an “aggravated” offence from seven years’ imprisonment for
leaking official secrets that allegedly prejudice Australia’s military defence
or security. There is a roughly proportional increase in the jail terms for
lesser offences.
People can be convicted even if they did not intend to
“deal with” information that was “harmful” but were merely “reckless” as to
that possibility. That is, they were aware of a “substantial” and
“unjustifiable” risk of such an outcome. And “strict liability” applies to some
offences. For example, an “aggravated offence” can be committed even if the
person is not aware that the document had a security classification.
As with some other parts of the EFI Act, the
attorney-general must consent to prosecutions, but that only magnifies the
danger of political victimisation.
The secrecy laws, like the “foreign interference”
legislation as a whole, are designed to give governments and the intelligence-police
apparatus a broad array of powers to try to silence dissent and jail those who
reveal the truth about the drive to war and austerity.
No comments:
Post a Comment