Emily Howie is a legal director at Australia’s Human Rights Law Centre.
This week, Australians woke up to the alarming realization that their government has been quietly promoting a creeping surveillance state at the expense of press freedom and democratic values. It should mark a moment of reckoning for the country and its entire approach to media and public transparency.
On Wednesday, officers from the Australian Federal Police appeared at the Sydney headquarters of the Australian Broadcasting Corporation, the country’s national broadcaster. Armed with a warrant over a 2017 investigation into military files that suggested that Australia soldiers had killed civilians in Afghanistan, they combed through journalists’ computers and reviewed an estimated 9,000 documents.
The raid came just one day after police raided the home of a NewsCorp journalist, Annika Smethurst, in Canberra. The raid related to her story on potential government plans to expand a spy agency’s power to spy on Australians. Another journalist, Ben Fordham, is reportedly at risk of being raided after refusing to provide the identify of a source who revealed confidential information.
Thus far, no arrests have been made as a result of either of the raids, but the mere show of force has laid bare the tenuous protection of media freedom and the insidious power of law enforcement to stymie vital democratic debate in Australia.
There can be no doubt that the stories under investigation are of legitimate public interest. It may be uncomfortable for governments when misconduct is revealed. They may not want the public to know about their failures or attempts to spy on them. But those are not good reasons to prevent the truth coming out.
Yet, for too long, Australian governments have passed laws purportedly to protect “national security” that have ridden roughshod over press freedom and human rights. These laws, which include criminal offenses for disclosing government information and other measures that give authorities expansive power to access and even alter data, create a stifling secrecy in government, without proper safeguards to ensure accountability for misconduct or human rights abuses.
Under this legal regime, we have seen an alarming number of investigations and prosecutions of whistleblowers and journalists. Whistleblowers face the risk of jail time, even if they’re revealing the abuse of refugees in Australia’s offshore detention camps or Australia’s spying on its ally East Timor during oil treaty negotiations.
Last year, the Australian government further criminalized public interest journalism with amendments to espionage offenses. Under the new offenses, whistleblowers and journalists who “deal with” information in a manner that would “prejudice” national security could face life in prison. One problem with this measure is the extremely broad definition of “national security,” which can apparently be prejudiced by reports that cause harm to Australia’s reputation. Thankfully, these laws are unlikely to be retrospective and do not apply to the journalists who were raided this week — but they may apply to similar cases in the future.
The prosecutions alone can be devastating, but a broader concern is the chilling effect they could have, dissuading others from coming forward and ramping up the consequences for journalists and news outlets who must calculate the risk of publication.
In recent years, Australia has also given vast new powers to law enforcement and intelligence agencies, allowing unprecedented access to Australians’ private lives without proper safeguards. Australia requires telecommunications companies to collect and retain records of people’s phone and Internet activity for two years, with warrantless access allowed by at least 22 law enforcement agencies. This scheme seriously jeopardizes the ability of journalists to keep sources confidential. Last year, in a world first, Australia empowered authorities to create back doors into encrypted devices. That means authorities can now hack our computers and phones without the necessary safeguards for journalism, privacy or other rights.
None of this bodes well for free speech and democracy in Australia. But if something good can come out of this week’s disturbing events, it is that Australians take a long, hard look at the surveillance state we now live in.
We urgently need to rein in the power of our law enforcement and intelligence agencies to ensure they focus on keeping us safe from serious, substantial harm — and not waste their time suffocating public-interest journalism. For this to happen, Australia needs to reform its espionage and other national security laws to balance powers of law enforcement with rights and ensure accountability for any abuses of power.
Politicians from all parties must end their reluctance to vet legislation introduced in the name of national security, and take steps to ensure that no other pernicious laws are rushed through Parliament without proper scrutiny or appropriate restraints on police power.
Finally, we need to create an Australian Charter of Human Rights. Australia remains the only Western democratic nation without a bill of rights or similar law. It’s past time to develop one so people and communities have the power to hold the government to account when it oversteps the line.
It’s been a dark week for Australian democracy. We desperately need it to be a turning point, a moment to reinvigorate our commitment to democracy and all that comes with it, including press freedom and an informed public. If it isn’t, Australia’s very democratic foundations could be at risk.
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