Dr Binoy Kampmark writes a guest blog for RoLIA about the latest tranche of national security legislation, their potential effects on civil liberties and the broadening of executive power in Australia.

Dr Binoy Kampmark

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures in law and politics at RMIT University, Melbourne. Email: bkampmark@gmail.com

The latest proposed legislative developments are troubling, especially coming from a government that supposedly made freedom of speech in Australia one of its priorities. Laws are before the Parliament proposed by the Attorney General, George Brandis, suggesting a broadening of executive and police powers in combating the threat posed by Islamic terrorism.

Much of this has been prompted by the successes of the Islamic State, also called ISIS or ISIL.  A series of beheadings by the group, and arrests in Sydney and Brisbane, has set the scene for the passage of laws that, if passed, will curtail an assortment of freedoms while enhancing the police arm of government.  They will also see a winding back of debate and expression through a potentially draconian targeting of writers, journalists and bloggers connected with the reporting of “special intelligence operations” (SIOs).

Draft amendments to the Criminal Code and Crimes Act 1914 (Cth) include a lowering in the threshold applicable to police officers when initiating an arrest of someone for terrorism offences without a warrant.  There would only be the requirement to “suspect on reasonable grounds” that a commission of a terrorism offence had taken or is taking place, abandoning the “belief on reasonable grounds” requirement in place since 1995.

Proposed amendments will also broaden powers in combating acts of terrorism, be they in the form of control orders currently found under Division 104 of the Criminal Code Act 1995, restricting the movement of certain individuals, and imposing the requirements to wear electronic tags.  Regrettably, the High Court in Thomas v Mowbray [2007] HCA 33 has deemed such orders valid and within the power of the Commonwealth to pass.  Even as it stands now, such orders can be held to be justifiably broad “for the purpose of protecting the public from a terrorist act” (Criminal Code, s. 104.4).

Perhaps the most troubling of all the amendments so far proposed is the suggested insertion by Sch.3 of the National Security Legislation Amendment Bill (No.1) 2014.  The bill proposes to exempt those involved in “special intelligence operations” (SIOs) from criminal and civil liability for “special intelligence conduct” that takes place during the course of such operations.

The actions that fall within this definition include anything authorised by the Director General of ASIO or a Deputy Director General that does not cause “the death of, or serious injury to, any person; or involves the commission of a sexual offence against any person; or causes significant loss of, or serious damage to, property; or induce another person to commit a crime against the Commonwealth or a State or territory that they were not otherwise planning to commit.”

According to Justin Glyn, writing in Eureka Street, these can include “all manner of crimes, ranging from kidnapping to holding people in solitary confinement (false imprisonment) up to physical torture which does not kill or amount to a sexual assault.”[3]  The picture proposed by Glyn is a grim one, comprising the possibility of waterboarding, sleep deprivation and force feeding.

As for the writing fraternity, a chill is being felt.  Very cold comfort can be gathered from the Advisory Report from the Parliamentary Joint Committee on Intelligence and Security, notably on the issue of reporting on an SIO covered by the proposed s. 35P.  The Attorney General’s Department has made it clear that a two year term of imprisonment as it stands “would not provide a sentencing court with an adequate range within which to impose a sentence that reflects the gravity of the consequences of the conduct constituting the offence.”[5] Instead, it is recommending a term of up to five years imprisonment, to be increased to 10 in the event that information disclosed endangers lives, even if that information is revealed unwittingly.

Whistleblowers, leakers, bloggers and potentially journalists fall within the remit of the provision, though Acting First Assistant Secretary Jamie Lowe of the National Security Law and Policy division within the AG Department has tried deflecting the claim.  The authorised communication would have to arise from someone in a “specified form of relationship with the intelligence agency”.  Journalists would not normally be “in such a relationship”.

This assertion is naïve, if not disingenuous. In a “Snowden” scenario, in which a former intelligence operator may provide confidential material, on an ongoing basis, to a journalist such as Glen Greenwald, it is highly unlikely to exempt the publisher or recipient of it. What constitutes a “relationship” is bound to be broad.

Professor Mark Pearson has told the World Editor’s Forum that this constitutes “the most flagrant example of the Australian government posing an open threat to the liberty of journalists and other communicators simply trying to do their job in the reporting of news important to all citizens.”

The Committee itself did not deem it “appropriate to provide an explicit exemption for journalists from the proposed offence provisions.”  The Commonwealth Director of Public Prosecution will be required to consider “the public interest, including the public interest in publication before initiating a prosecution” in the context of disclosing or revealing information connected with an SIO.  Such public interest tests in surveillance operations are notoriously vague.

It is no exaggeration to suggest that the current swathe of proposed laws risk placing Australia, not merely on a police state footing, but a garrisoned footing.  Terrorism, for all its fearful properties, remains an idea, a tactic and a method. The consequences of responding to it are quite something else.  Shredding civil liberties is the first step to admitting a failure in dealing with the very problem a society should resist.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

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