CHRISTIAN PORTER
Attorney-General Christian Porter

Attorney-General Christian Porter

One of the government’s few recent successes has been convincing the media that the “foreign interference” laws currently before parliament and subject to yesterday’s Joint Committee on Intelligence and Security report are actually about foreign interference.

The government is still at it, with Attorney-General Christian Porter jumping up and down to insist that the laws must now be passed immediately, in time for the forthcoming by-elections. Clearly, even as we speak, the streets of Caboolture and Burnie are crawling with Russian and Chinese agents.

It’s true that the suite of legislation is partly about foreign interference — and those parts should have been straightforward; it’s only the government’s bloodymindedness, George Brandis’ cackhandedness, and the incompetence of the Attorney-General’s Department, that made them difficult. The register of foreign interests was written so broadly that anyone buying a tin of Italian tomatoes would be required to sign up — including the government’s mates in the ranks of big foreign-owned businesses. Faced with the difficulty of omitting business executives visiting Canberra to influence policy and politely inquire as to whom they make the cheque out, and leaving GetUp in, Brandis’ replacement Porter yesterday announced a dramatic reduction in the list of who had to sign up.

But foreign interference (and let’s remember that Labor tried to ban the most direct form of foreign interference, foreign political donations, in 2009, and the Coalition blocked it) was only the pretext for yet another assault by this government on basic rights, via a whole division of the bills devoted to new secrecy restrictions relating to government information.

It’s easy rhetoric to accuse governments of authoritarianism. I generally find it not just distasteful but pointless because it obscures rational and informed discussion. But this government has a genuine police state agenda and is taking us to a sinister place that looks nothing like the Australia we grew up in. Whether it’s the new “papers please” ID proposal, using private information to smear critics, permanent rounds of ever more draconian surveillance laws or the ongoing mistreatment of Witness K and his lawyer, there is no other way to describe this government than increasingly authoritarian.

And that was the basis for the original secrecy restrictions advanced by Brandis under the cover of the foreign interference package — with which they had literally nothing to do, as a number of critics observed. As the JCIS report explains in chapter 4, no one has been happy for a long time with our current secrecy laws, which are found in the Crimes Act and date from the 1960s. Governments think they are too difficult to prosecute effectively; critics think they’re overly broad. So in 2009 the Australian Law Reform Commission proposed an overhaul that addressed the concerns of both sides, and actually outlined the new legislation needed, in its report Secrecy Laws and Open Government in Australia. Did this 2009 template become the basis for AGD’s proposed new secrecy law?

Not quite. The foreign interference laws, AGD said, provided an opportunity to establish new secrecy laws that were “informed” by the ALRC report. Informed. Informed as in, provide a pretext for a draconian expansion of secrecy laws. That kind of “informed”.

The original bill advanced by Brandis was horrific. Not merely did it up the penalties for officials communicating information, it criminalised communicating virtually any government information, so long as a bureaucrat had slapped even a low-level security classification on it. And it criminalised, and created penalties of up to 15 years for, the act of simply receiving or handling such information. The distinction between bureaucrats who actually had access to sensitive information, and the rest of us, was erased — everyone was to be treated the same. Even if you received unsolicited sensitive information, you could be jailed. Even if the EA at the front desk of a news bureau delivered an envelope with sensitive information in it to a journalist, they’d be liable. 

Legal groups, civil liberties bodies and media organisations — even the Coalition lackeys at News Corp — went spare, and Porter recognised Brandis and his bureaucrats had pushed too far. He produced amendments addressing a number of the issues raised by critics. Penalties would be lowered; the laws would provide defences; journalists could use a public interest defence; the applicability of the new laws restricted. Much of the government’s effort to criminalise any journalism that could be portrayed as involving sensitive information was withdrawn.

To Labor’s credit — and one gives it to them only for encouragement, because they have such a shocking record of failing to stand up to the government on civil liberties — it pushed back further via the JCIS process. The thresholds involved in the definition of secrecy offences should be raised, Labor urged, and defences claimed to be implicit in current law should be made explicit. But parts of Brandis’ ambit claims made it through:

  • Whistleblowers remain unprotected — they are instead required to go through the labyrinthine APS processes laid down by internal whistleblower laws.
  • You can still be prosecuted for viewing, sharing and republishing Wikileaks-style leaked governments documents unless you can prove you believed the information would not “cause harm to Australia’s interests”.
  • Non-journalists who receive or use information (such as MPs, or NGOs) can still be prosecuted, although the committee recommended legal advice also be protected.

So the government has still had some wins in its effort to push us toward a police state. And it will never give up.

Peter Fray

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