July 22, 2014 - Updated on January 20, 2016

Whistleblowers could face up to 10 years’ imprisonment in Australia

Legislation submitted by Australia’s Attorney-General George Brandis on 16 July makes the Australian Security Intelligence Organisation (ASIO), the country’s intelligence agency, untouchable. Among the many measures designed to protect it is total ban on disclosing information about “special intelligence operations” on penalty of imprisonment.

The national interest is invoked more and more at the expense of the public interest. The bill submitted by Brandis would be a serious blow to freedom of information and stands in contradiction to international treaties that Australia has signed.

The draft, entitled “National Security Legislation Amendment Bill”, provides for a new offence, liable to five years’ imprisonment, for anyone who discloses information without authorization about “special intelligence operations”. The sentence can be increased to 10 years if the information “endangers the health or safety of any person or prejudices the effective conduct of a special intelligence operation”.

Human rights violations can thus easily be covered up by the ASIO, especially since the classification of an operation as “special intelligence” would require only the consent of the security director-general or his deputy.

The bill will also strengthen the surveillance powers of the agency.

This bill is dangerously imprecise and does not take account of the public interest in any shape or form, and as such it is a threat to freedom of information and a violation of international standards,” said Benjamin Ismaïl, head of the Reporters Without Borders Asia-pacific desk.

Whistleblowers should not be subject to threats of this kind when they are carrying out the important task of disseminating news and information on behalf of their fellow citizens.

We call on the attorney-general to scrap this bill, which is far too restrictive to be amended appropriately.”

Paragraph 35P, entitled “Unauthorised disclosure of Information” states: “(1) a person commits an offence if (a) the person discloses information; and (b) the information relates to a special intelligence operation. Penalty: Imprisonment for five years.”

Article 19 of the International Covenant on Civil and Political Rights, of which Australia is a signatory, allows national security as legitimate grounds for restricting freedom of information but on the other hand General Comment 34 by the UN Human Rights Committee on article 19 says these restrictions must be closely regulated, exceptional, specific and justified.

The law should not make the link between national security and special intelligence operations a matter of routine. It is up to the government to demonstrate to the courts on each occasion that such operations are essential from a security standpoint and the dissemination of information about them could affect national security.

No more Edward Snowdens

The goal of the bill appears to be to avoid the emergence of an Australian Edward Snowden, the American whistleblower who published transcripts of wiretaps by the National Security Agency. The Australian Broadcasting Corporation (ABC) published some of the documents leaked by Snowden showing that the Australian intelligence service had tapped the phones on Indonesian leaders including that of President Susilo Bambang Yudhoyono.

Their publication caused a diplomatic row between the two countries and strong criticism by the government of the whistleblower and the news organizations that published the information.

Prime Minister Tony Abbott was highly critical of ABC. The station is a frequent target of abuse by the prime minister. In January this year, he took issue with an ABC report that a group of asylum seekers had been abused by the Australian navy, saying: “News that endangers the security of our country frankly shouldn’t be fit to print”.

Australia is ranked 28th of 180 countries in the 2014 World Press Freedom Index compiled by Reporters Without Borders.