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Coalition politicians who champion Donald Trump’s right to free speech have passed numerous laws making it a serious criminal offence to exercise this right in Australia. Labor parliamentarians have also helped pass laws criminalising speech that’s clearly in the public interest or simply innocuous.
When Prime Minister Scott Morrison was invited at a recent press conference to condemn far-right conspiracy theories promoted by government members such as George Christensen, he refused. He also defended another Liberal backbencher, Craig Kelly, who has undermined the government’s health message by spreading false information about COVID-19. At the time, Morrison said: “There’s such a thing as freedom of speech in this country and that will continue.”
In fact, there are severe constraints on free speech in Australia, more so than in North America or Western Europe.
The Coalition government’s 2018 security laws make it an offence to leak, receive or report a wide range of "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". Another clause makes it a serious crime to say anything that harms "Australia’s foreign relations, including political, military, and economic relations". Even if ministers should sometimes be circumspect, other people should be free to criticise any country without resorting to disinformation.AdvertisementLoading
Jail sentences for some offences can be 15 or more years, even when little genuine harm results. There is no recognition that leaked information has never killed anyone in Australia. In contrast, secret intelligence generated by Australia and its allies has led to innocent people, including children, being killed in Afghanistan and elsewhere.
Parliamentarians have endorsed the serious erosion of core liberties over recent years. The rot set in when they abjectly acquiesced in the Australian Federal Police’s raid on Parliament House in 2016, with police accessing IT systems and seizing thousands of non-classified documents to search for the source of leaks to a Labor opposition frontbencher. The leaks revealed problems with rising costs and delays in the National Broadband Network – information that should have been public.
In an earlier era, ASIO and the AFP would never tap phones in Parliament House, let alone raid an institution at the pinnacle of Australia’s democratic system. The Parliament should have found the AFP in contempt. Instead, the politicians squibbed it and the AFP was emboldened.
Last July, after a protracted investigation, the AFP recommended charging an ABC journalist Dan Oaks, co-author of the 2017 series "The Afghan Files", which exposed alleged war crimes committed by Australian special forces in Afghanistan. In October, the prosecutor declined to proceed. The law should clearly state the AFP should not conduct an extensive pursuit of a journalist who was unambiguously acting in the public interest.
Undeterred, the Morrison government is pushing for more powers that undermine free speech and civil liberties. Its International Production Orders bill would give ASIO and the AFP the right to order communications providers in "like-minded" countries to produce any electronic data they request and remove encryption. One downside is that the FBI and a wide range of American law-enforcement and security bodies will have reciprocal rights to access private data held by Australian people and corporations. A big stumbling block is that the US law, called the CLOUD Act, prohibits other countries accessing American data if they have weaker privacy and civil liberties protections than the US. Australia falls into that category. The protection in European countries is even stronger than in the US.
In a bold move, Home Affairs Minister Peter Dutton last month introduced a bill creating extraordinary new powers to affect a wide range of people, not just paedophiles as the government claims. The bill covers all crimes with a jail sentence of three or more years. This includes whistleblowers and journalists and innocent people expressing an opinion that falls foul of foreign influence laws.
If passed by our politicians, Dutton's bill will give the AFP and Australia’s Criminal Intelligence Commission the ability to covertly take over a person’s online account to gather evidence of a crime. Even more disturbingly, they will have an unprecedented “data disruption power” to add, copy, delete or alter data on the internet.
Law Council president Pauline Wright described the proposed powers as extraordinary. She said allowing a member of the Administrative Appeals Tribunal to issue “disruption warrants” is of “particular concern” – only superior court judges should be able to make such orders.
Both these proposed new powers should be severely curtailed. No Australian government should be able to destroy individuals’ online data without a court finding them guilty of a crime. Nor should foreign security agencies be allowed to access Australians’ private information under the US Cloud Act.
Brian Toohey is author of Secret: the making of Australia’s security state.
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Brian Toohey writes on News specialising in Policy, Politics, Economy.Loading