Whistleblower protections hang in the balance
This week, backbencher Andrew Hastie is chairing a powerful parliamentary committee that is looking into laws that criminalise whistleblowing and journalism. It's ironic, because his opinion piece for The Age and the Sydney Morning Herald last week is a perfect example of what is wrong with these laws.
By Alice Drury
Senior Lawyer
Human Rights Law Centre
It is entirely likely the article, which was strongly rebuked by China as being "detrimental" to Australian-Chinese relations, could have constituted espionage. Were he not a politician and therefore probably protected by a defence for people acting in their capacity as a public official, technically Hastie – and his editor - could be facing prosecution for publishing it.
This outcome is clearly absurd, and yet espionage offences introduced last year impose a sentence of up to 20 years for publishing an opinion if it could negatively impact Australia's political or economic relationship with another country. The impact need not be serious or substantial, it just needs to do more than merely embarrass our government: for instance, by undermining the relationship between an Australian and foreign official.
It is crystal clear, following the Attorney-General's Department's confirmation in a submission to the committee when the laws were passed, that "espionage" now extends to publishing research and opinions – it's not just about protecting intelligence information.
The question is, why would anyone be prosecuted for expressing an opinion such as this? It's shocking to think that if he were an ex-politician, an academic, a CEO, a journalist or someone else whose views were influential as the law currently stands could face investigation and prosecution. And up to 20 years in jail.
When waving these laws through last year, we were reassured that the government would never enforce them in order to silence dissent. This is a tough pill to swallow at a time of multiple high-profile prosecutions of government whistleblowers. The police raids on the headquarters of the ABC and on NewsCorp journalist Annika Smethurst's home demonstrate that, when it comes to protecting our right to know what the government is doing, the "trust us" line doesn't cut it.
These laws clearly need to be reined in to ensure that they only criminalise genuine espionage and to stop the prospect of democratic debate being collateral damage. This week I told Hastie's inquiry, held by the intelligence and national security committee, that we need an exception from prosecution for public interest whistleblowing and reporting, along with a stronger scheme to protect whistleblowers more generally.
We also urgently need to reconsider police powers that, like espionage, have been sold to us as necessary for fighting terrorism and serious crimes, but in application are so broad they allow surveillance over whistleblowers, journalists, and, for that matter, all of us.
Police powers like the metadata retention regime, which were granted in the name of fighting serious crime and national security, allow government agencies to access information that gives them granular insight into our private lives - our movements, who we know and what websites we visit. They have been used by police to track down the communications history of journalists to reveal their sources. And, in a move that has turned local councils into Big Brother, permitted access to our own information to chase down parking fines.
Police now even have the power, in what was a world first, to access phones and encrypted messaging services like Whatsapp remotely. Just like metadata, this was sold as a means of stopping child sex offenders and organised crime, but in reality it can be used to undermine warrants that protect journalists' communications, and can be used to investigate crimes as minor as a prank call.
The parliamentary committee has heard evidence this week about the chilling effect these laws are having. Journalists and whistleblowers alike are abandoning public interest stories for fear of being prosecuted. And these stories are important. In recent years whistleblowers have exposed the false pretences on which Australia has gone to war, that elderly people were being washed in kerosene baths; we've learnt that big banks continued to charge fees from people after they'd died and of children were being abused in youth detention.
Andrew Hastie did not face a real prospect of prosecution for his incendiary opinion on China, and nor should he. As he chairs the inquiry into laws that would criminalise journalism and speech, let's hope he champions the right of journalists, academics, whistleblowers and others to share the same protection he enjoys.