By Paul Gregoire and Ugur Nedim
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 who leak classified information, but also criminalises all steps that go into reporting 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.
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.”
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 early in 2018.
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 Mr Rowlings, the Turnbull government’s further crackdown on whistleblowers – ‘whistlers’ – 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.
This article, by Paul Gregoire and Ugur Nedim with input from Civil Liberties Australia, was first published on the Sydney Criminal Lawyers website. Photo: courtesy Libreshot.