(Image: Private Media)

The Julian Assange challenge is creeping closer and closer to home. Despite all the “not my problem” brush-offs by successive prime ministers, it’s all set to turn up — sooner or later — on Australia’s doorstep.

The United States government assured the UK’s High Court that if he’s convicted, Assange would be allowed to serve any sentence in an Australian prison.

It’s great to see British courts eager to uphold tradition: recognising Australia as the jail of choice for political prisoners of the great empire of the moment. But it implicates the Australian government in the pursuit of Assange after all its efforts to waive it off as an American thing.

That 10-year chase by the US government threatens to rewrite journalistic practice in democratic societies for the worse — including in Australia. It’s taking two big whacks out of accountability journalism: restraining how journalists can engage with sources, and limiting what the law will consider “the press” that might be entitled to freedom.

Australian governments have long followed the US in targeting the supply side of confidential information that journalists rely on to challenge governments, persecuting and jailing whistleblowers and leakers. Now, starting under Donald Trump and continuing under Joe Biden, it is targeting the demand side — the journalists who take that confidential information and use it to hold governments to account.

The details of the law turn on the arcania of US constitutional and national security law. But here’s the bad news: the US framework is better for an independent media than the Australian one. Whatever US prosecutors and courts decide, it’s likely to end up worse in Australia.

The core charge is that by receiving and publishing “top secret” information (the cache of US diplomatic cables leaked by Chelsea Manning) Assange breached the US World War I-era Espionage Act. (He’s separately charged for conspiracy under anti-hacking laws for allegedly coaching Manning in how to secretly download the cables.)

It’s not the first time the Espionage Act has been used for things other than, well, spying. Daniel Ellsberg was charged under the act for leaking the Pentagon Papers (the charges were dismissed) and WikiLeaks source Chelsea Manning was convicted (her sentence was commuted to seven years served by Barack Obama). 

Earlier presidents had pulled back from using the act against journalists. In 1975 under Gerald Ford, the US decided not to proceed against Seymour Hersh for breaking the My Lai massacre story, and Obama refrained from using it against Assange.

Will Australian authorities approach Australian espionage laws and journalism with the Ford-Obama restraint or the Trump-Biden enthusiasm? Hard to say. National laws were “updated” and expanded in 2018 after an earlier 2002 Howard-era “update”. There is no news reporting defence under the laws.

Australia’s security agencies have indicated they consider document leaks like those of Manning or Edward Snowden to be equivalent to espionage. In 2019, the Australian Federal Police raided the home of journalist Annika Smethurst and the offices of the ABC over other national security breaches that similarly provide no protection for journalists.

The US government under Trump and Biden dismiss press freedom concerns, saying Assange “is no journalist” and the manner in which he solicited information was not journalism. They’ve been encouraged by a bit of old media sneering at the WikiLeaks model. “We regarded Assange throughout as a source, not as a partner or collaborator,” The New York Times editor Bill Keller said in 2011.

Maybe. Whether Assange is a journalist or not, WikiLeaks was certainly doing journalism. That same year, it was awarded the Walkley award for most outstanding contribution to journalism. (Disclosure: I was part of the award panel.)

The Friday night decision by the UK High Court overruled a lower court ruling that although Assange should be extradited, he was too ill given the possibility of the sort of mistreatment endured by Manning. The offer of transportation to the colonies on conviction was part of the “you can trust us” package put together by the US in response.

There’s now a further appeal by Assange, together with a separate appeal against the extradition decision. Then there’s the US trial and appeals, almost certainly to the US Supreme Court.

Seems there’s a long way to go before Australia has to air out a prison cell. Meanwhile, Assange remains in jail in the UK.

Should the Morrison government intervene on Assange’s behalf? Let us know your thoughts by writing to [email protected]. Please include your full name if you would like to be considered for publication in Crikey’s Your Say columnWe reserve the right to edit for length and clarity.