Hong Kong's new national security laws are attracting well-deserved condemnation. It's a pity that there hasn't been greater recognition that Australia's own national security laws share some common features. Scant attention has been paid to proposed new laws before the Parliament that greatly increase the powers and extraterritorial reach of Australia's intelligence and security organisations.
The new laws Beijing has imposed on Hong Kong create serious offences relating to terrorism, secession, subversion and foreign collusion. Australia's constitution long ago prevented any part of the nation seceding. More recently, Australia acquired over 80 tough anti-terrorism laws, as well as others covering areas such as espionage, subversion and foreign collusion.
It is no surprise that Beijing introduced laws against terrorism, often defined as politically motivated violence, after some Hong Kong demonstrators threw petrol bombs at police and wrecked metro stations and shops while calling for full democracy and independence. These unattainable goals are noble, but it's hard to condone violence. In Australia, that sort of violence would almost certainly lead to prosecutions.
As in Hong Kong, Australia's national security laws also allow trials to be held in secret. In one notorious case, all details were kept entirely secret. In a forthcoming trial, involving Canberra lawyer Bernard Collaery and his client, a former spy, the court will be closed for much of the evidence.
The Hong Kong laws are reportedly so sweeping that they give prosecutors great leeway to decide what constitutes an offence. Similar considerations apply to Australia. The Foreign Espionage & Interference Act 2018 makes it a criminal offence to receive "information of any kind whether true or false and whether in a material form or not, and includes (a) an opinion and (b) a report of a conversation". The same act makes it a national security offence to cause "intangible" damage to Australia's international relations, including "political, military and economic" relations.
Until now, Hong Kong was considered a bastion of free speech. The Australian Federal Police recently announced it had recommended prosecutors charge an ABC journalist with obtaining classified information showing that Australian soldiers allegedly committed war crimes in Afghanistan. The revelations are clearly in the public interest. If a prosecution proceeds, however, Australia's laws will make it hard to mount a public interest defence.
Proposed new laws before the Parliament will give 12 Australian security and intelligence organisations the power to force a wide range of digital platforms, service providers and similar firms in overseas countries to hand over personal and business data belonging to Australians.
These new laws will be facilitated by reciprocal agreements with the US and the UK, letting their agencies do the same here. The Law Council and the legal firm Gilbert + Tobin point out that the Australian agencies won't be subject to as many safeguards as those in the UK in the US. The agreements can also be extended to other "like-minded countries". In May, the Inspector-General of Intelligence and Security told a parliamentary committee this could lead to "cruel and inhuman punishments".
Another law before Parliament would give ASIO the power to question people as young as 14 for up to 40 hours. At present, this power applies only to terrorism issues and people above 16.
Law Council representatives told a parliamentary committee hearing on Friday that the new law would extend questioning to more topics, including acts in collaboration with foreign powers that were "detrimental to the interests of Australia". One Law Council witness said there was no clear definition of what this phrase meant. Another said there was no role for the courts in imposing appropriate checks and balances.
For 54 years after it was established in 1949, ASIO had no power to question people, let alone do so anonymously. If Australia wants to be a genuine liberal democracy, ASIO should be stripped of these powers.
- Brian Toohey is the author of Secret: the making of Australia's security state (Melbourne University Publishing).