Brandis legislates to trample on our freedoms

Brandis legislates to trample on our freedoms

The Attorney-General's national security laws show we desperately need greater human rights protection.

Australia is, notoriously, a liberal democratic country without human rights entrenched in legislation or in its constitution. This means that a law, proposed by Attorney-General George Brandis this week, which would allow governments to jail journalists and editors if they report on security operations, is more likely to be immune from legal challenge.

Any person who discloses without authorisation information about these operations in Australia or overseas faces up to five years in jail. If the disclosure is judged to endanger the health and safety of any person involved in the operations or prejudices the effective conduct of the operation, the penalty is up to 10 years' jail.

The proposed law is designed to prevent an Australian Edward Snowden emerging from the security agencies and revealing, via the media, any illegal activities or abuses of power on the part of ASIO and other security agencies. But the law's scope is broader than just preventing an insider from leaking information. It appears to cover any person who discloses that information. That of course would include journalists and the editors who publish the story.


To give a real-life example. The East Timor government has alleged that ASIS bugged the cabinet room and prime minister's office of that country in 2004. Such an operation would have involved unlawful conduct on the part of the ASIS officers involved, namely trespass, breaches of privacy laws etc. It would now be called a "special intelligence operation" and if the media reported on it they would face criminal prosecution.

The idea that the media should be jailed for shining a light on ASIO and ASIS' activities when there are allegations of illegality and abuse, amounts to an appalling undermining of a very fundamental right - freedom of expression and speech.

If Senator Brandis were in the UK, the US or Canada, such a law would be challenged as being contrary to constitutional or statutory human rights.

One of the major reasons why US prosecutors have not sought to charge editors and journalists at The New York Times for publication in 2010 of the voluminous WikiLeaks material on the wars in Afghanistan and Iraq, was because of the constitutional right to freedom of speech contained in the First Amendment.

In 1971 when former President Richard Nixon tried to stop The New York Times from publishing the Pentagon Papers, leaked by Daniel Ellsberg, the US Supreme Court said: "Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorships, injunctions, or prior restraint".

In Canada the Charter of Rights and Freedoms, which came into force in 1982, provides for "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication". The media's right to publish is "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

Similarly, the UK's 1998 Human Rights Act provides for freedom of the media, as does the European Union's Human Rights Convention.

In other words, journalists and editors in the US, Canada, the UK and most EU countries are able to challenge any attempt to prosecute them for publishing material about alleged illegal or abuse of power activities of security agencies on the basis that to do so breaches their fundamental protected rights, and governments are forced to justify why it is that such activities should be kept secret.

Australian journalists and editors will have no such protection if Senator Brandis' proposal becomes law. There is no human rights law in this country - an attempt by the Rudd government to introduce one was killed off by shrill alarmist opposition from conservative groups, including some media outlets.

But what Senator Brandis' alarming proposal tells us is that we desperately need greater human rights protection in Australia. We need to ensure that our journalists and editors are able to do what their colleagues in the US and UK, including WikiLeaks founder and publisher Julian Assange, have been able to do - publish material about what is really happening in wars, or how security agencies are breaching privacy rights, bugging phone calls of supposed allies, and intimidating telecommunications and IT companies to hand over vast volumes of user data.

Australians need to understand that if we do not have a human rights law at the national level our government can trample on fundamental rights more easily than they can in countries where those rights are protected in law. Senator Brandis' cavalier disregard for freedom of expression and speech this week is a case in point.

Greg Barns is a spokesman for the Australian Lawyers Alliance and in 2013 advised the WikiLeaks Party federal election campaign.

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