By Zeb Holmes and Ugur Nedim
Following concerns by a consortium of media outlets that Malcolm Turnbull’s new secrecy laws will place journalists at “significant risk of gaol time” for simply doing their jobs, the United Nations has weighed in by saying the laws impose “draconian criminal penalties on expression” while breaching Australia’s international obligations.
In a submission to a parliamentary review committee, a group of UN special rapporteurs have expressed concerns the legislation will “disproportionately chill the work of media outlets and journalists” by exposing human rights campaigners, activists and academics to criminal charges and, in doing do, contravene the International Covenant on Civil and Political Rights (the ICCPR).
The new laws prescribe prison sentences of up to 20 years for those communicate or “deal with” information which could potentially “cause harm to Australia’s interests,” where that information is obtained from government officials who are not formally permitted to disclose it.
Of particular concern is the broad definition of “harm”, which covers information that could “in any way” prejudice Australia’s interests or relations, including those between the federal government and any state or territory.
The new provisions apply to disclosure by, or information obtained from, current and former public servants, contractors, defence force personnel and employees of businesses who provide services to the federal government.
The reforms were tabled just hours after the marriage equality law came into effect in December, ensuring they were given little public scrutiny.
The UN warns the legislation is likely to breach of Article 19 of the ICCPR and legislation which ratifies it domestically.
“We are gravely concerned that the bill would impose draconian criminal penalties on expression and access to information that is central to public debate and accountability in a democratic society,” the submission states.
“For example, several offences under the bill would not only penalize disclosures of government information in the public interest, but also expose journalists, activists, and academics that merely receive such information to criminal liability,” it adds.
“Such extensive criminal prohibitions, coupled with the threat of lengthy custodial sentences and the lack of meaningful defences, are likely to have a disproportionate chilling effect on the work of journalists, whistleblowers, and activists seeking to hold the government accountable to the public.”
In an earlier joint submission, 14 major media outlets including the ABC, Fairfax Media and News Corp outlined that the new secrecy laws, combined with other draconian measures introduced by the federal government, will place journalists at “significant risk of gaol time” for reporting on state affairs.
Ethicos Group specialist Howard Whitton, who has advised states and the UN on whistleblower policy , has referred to the new laws as, “creeping Stalinism.”
“The absolute protection of principled disclosure of wrongdoing – unfettered by government – must be preserved, or Australia will become a laughing stock internationally”, he added.
The attorney-general’s department contends the laws preserve freedom of the press because they include a defence for the reporting of “fair and accurate” information which is “in the public interest”.
But legal experts point out that the defence is entirely subject and that, in practice, the government will interpret what is “fair and accurate” and decide who it prosecutes, or threatens into silence.
The new laws appear to be aimed at whistleblowers such as Edward Snowden who expose government lies, criminality and other forms of misconduct.
The bill’s explanatory memorandum even provides an example strikingly similar to the Snowden case; that of a contractor who leaked extensive American intelligence information to the Guardian and other publications.
“The suggested changes take the wrong lessons from the Snowden and other revelations,” said Gill Phillips, director of editorial legal services at the Guardian. “If public interest journalism is made harder or even criminalised, there is a real risk that whistleblowers will bypass responsible journalists altogether, and simply anonymously self-publish data leaks online, without any accountability.”
The laws are just another example of our government silencing those who seek to expose its misdoings – yet another moved towards state control at the expense of government transparency and accountability.