This isn’t just a dramatic headline. We wish it was. No, in actual fact it is referring to penalties that citizens could be faced with for nonviolent actions of peaceful protest, under new proposed changes to the Espionage Act which could declare a range of peaceful activities as sabotage.
United Nations Rappoteur on Human Rights has been scathing in a previous visit about our human rights record, and had this to say about the proposed legislation: “We are gravely concerned that the Bill would impose draconian criminal penalties on expression and access to information that is central to public debate and accountability in a democratic society.”
Update: these bills were passed in the Lower House Tuesday 26th June 2018 with bi-partisan support, and were debated in the Senate a few days later.
For those following this debate at a distance there was a suite of three bills proposed and discussed in the last six months, ostensibly to limit foreign interference in our democratic system. They are: The Electoral Funding and Disclosure Reform Bill (EFDR), The Foreign Influence Transparency Scheme Bill (FITS) and The Espionage and Foreign Interference Bill (EFI).
Whilst these bills were pitched to update Australian legislation to manage emerging threats of foreign interference in elections and political decision making, they are instead a trojan horse of civil liberties and human rights breaches, wildly over the top, and sloppily articulated legislation that has had civil society up in arms about the impacts.
Did you protest the Iraq war like we did? Well Andrew Wilkie MP reckons those protests could have fallen foul of the espionage act.
Friends of the Earth has stated: We are deeply concerned that the proposed amendments fail to remove the threat to charities. For instance, the original bill risked sweeping whistleblowers, aid workers, journalists, and other not-for-profit workers into its net through its broad definitions. While the suggested amendment introduces a public interest defence for publication of secret documents, there is no guarantee it will protect charities from doing their work. And the breadth of the offence of sabotage, and in particular what amounts to “damage” to public infrastructure, has not been meaningfully improved. The potential for criminalising peaceful protest on measures of international importance remains real.
Large non-government organisations have focused much of their energy and public critique on the impacts to funding and advocacy work in the first two bills, and its only in the last couple of weeks that the third bill, the Espionate and Foreign Influence legislation has been more profiled in the media.
And it is a horror show.
You can read the full bipartisan report here. Submissions to the committee over recent months can be viewed here. The issue is that the Labor party are terrified of being seen to be weak on national security – which means they have compromised heavily for bi-partisan agreement on the EFI bill which could see unprecedented penalties for peaceful activists.
The short version…
The devil is in the detail. The re-defining of some terms, and the complete lack of definition for others, has massive ramifications for peaceful protest, particularly in an era of corporate dominance in the political realm.
There is no definition for sabotage or espionage or foreign interference. Yet it is unclear that charities, journalists and whistleblowers will be exempted. There is a definition for public infrastructure which is hugely expanded, “damage” is very vague and catch all – and national security now involves corporate interest.
It is best outlined by this overview
There are also new penalties and offences for sabotage – up to 20 years in prison – you can see the intent of them outlined in this explanatory memorandum: (you can find here current definitions for sabotage which are much clearer in scope around defence and military infrastructure).
Schedule 1 introduces comprehensive sabotage offences into new Division 82 in Part 5.1 of the Criminal Code, replacing the existing sabotage offence at section 24AB of the Crimes Act, which only protects Defence facilities. The new sabotage offences will criminalise conduct causing damage to a broad range of critical infrastructure where it could prejudice Australia's national security. The offence in new Division 82 will apply higher penalties where sabotage offences are committed on behalf of foreign principals. New Division 82 will also contain offences that apply where a person's conduct does not immediately cause damage, but leaves an item or system vulnerable to future misuse or exploitation.
There has also been an extension and reframe to what is considered “critical infrastructure” which is now called “public infrastructure” – which has a hugely wide interpretation including a range of commonwealth property, telecommunications infrastructure and more. From the report:
So could that mean, if some peaceful religious leaders block a road in protest to stop the Adani coal mine, a foreign owned company – that instead of a simple obstruction of traffic charge – which they would cop on the chin as a reasonable consequence for an act of principle… that they could be charged with sabotage and risk a jail sentence of 15 years?
What about the peace activists who swam onto Swan Island naval barracks in an act of nonviolent resistance to Australia’s involvement in the ongoing wars? Or blockaded the gates to the military facility?
What about peaceful activists who occupied Parliament House and temporarily blocked access, and sought to highlight the Australian governments failure to act on climate change to the United Nations – involving speakers from the Pacific Islands being inundated with rising waters?
There are so many scenarios of peaceful protest that has highlighted or intervened in significant concerns around social and environmental justice that we simply do not know, if they could possibly be caught up in legislation designed to stop serious Espionage and violent attacks on defence infrastructure. We are trying to find out and will have all eyes on the bill when its introduced next week.
Politicians are using the by-elections as an excuse to push this legislation through quickly that will do permanent damage to our democracy and ability ato advocate for a safe climate, and for social justice. The proposed changes are so damaging they need to go back to the drawing board, properly this time, and take on the concerns already clearly articulated by members of civil society and charity groups that collectively represent millions of Australians.
UNDERSTAND MORE AND SHARE INFORMATION WITH OTHER ACTIVISTS
BROAD CONCERNS
* Rewriting of the definition of national security – exellent overview by Australian Lawyers for Human Rights
This is a HUGE issue in and of itself. It is part of a broader trend that we are seeing business and economic interests being placed of higher importance. We have seen this with anti protest legislation in Tasmania and other states that prioritised business over human rights. And of course it is no surprise that whilst charities, journalists and whistleblowers may still be impacted by this legislation – corporations are excluded.
The way a coal company is viewed by other countries does not risk our national security. And there has been much damage to our civil liberties done in the name of “national security.”
As George Williams points out, there have been more than 70 pieces of “anti terror” legislation passed since 2001. “Australia does have a truly extraordinary record of making anti-terror laws, in fact we’ve now made 70 separate federal anti-terror laws since September 11, 2001,” he said. “In Australia, that’s often occurred with great controversy but in the end, they’ve been passed with bipartisan support, and Australia has on the books some truly remarkable measures that were unthinkable prior to September 11, and which go further than the laws in many other countries, including the United States and the United Kingdom, in providing powers to police, intelligence agencies and the like. One reason this has proved possible in Australia is because we are the only (Western) democracy without any form of national bill of rights.”
Bernard Keane at Crikey also recently wrote about the “An incomplete list of evidence that Australia is becoming a police state”
* Political campaigning
The definition of “political campaigning” is broad. It includes any public views expressed on a registered political party, candidate, or MP; public expression on an issue that is likely to be part of an election; and commissioning an opinion poll or research relating to an election, or voting intention.(1)
Charities falling under this new class of political campaigners will need to register with the government, and ensure that funding received from foreign donors is not used as part of any campaign about an issue that might be deemed political.
- Expansion of “critical infrastructure” and what could be the focus of these proposed charges –
- SABOTAGE charges
MORE DETAIL
The best overview on the package of bills is from the Australian Lawyers for Human Rights. The Hands off Charities Alliance has gathered some case studies that paint a picture of some of the broad impacts of the proposed legislation.
At the end of last year the government flagged changes to address issues around Foreign Interference into donations, but over stepped to the point that even the Institute of Public Affairs spoke out against the bills.
The Institute of Public Affairs (IPA), actually called for the legislation to be withdrawn, “The IPA is inherently concerned about any proposal that seeks to ‘manage’ political debate by limiting freedom of speech,” IPA research fellow Gideon Rozner said in a statement. “At the very least, the Turnbull government must implement the committee’s recommendations in full to spare civil society from this deeply flawed bill.
There has been a strong public campaign against many aspects of a couple of the bills, but still significant concerns have not been taken on board. There is absolutely no need to rush through such significant legislation. AG Christian Porter used the furphy of the upcoming bi-elections to justify passing the proposed changes so quickly.
We need to call on the ALP to step up, and for once, defend human rights, instead of remaining in lock step with the Liberal Party.
As of 19th June, 2018
EFI bill expected to be introduced and passed week commencing 25th June
18th June – Oxfam, Communities Council Australia and Pew appeared before the committee to speak to the Foreign Interference and Transparency legislation. Read more from Pro Bono news here.
The FITS Bill would require groups – including charities – to register every time they undertake communications or lobbying activities on behalf of, or with the knowledge of, a “foreign principal”.
Attorney-General Christian Porter told Fairfax Media the tougher measures were needed before voters go to five byelections in four states on July 28, given the rise in foreign interference.
15th June
Here are things that charities say they won’t be able to do anymore – Buzzfeed
Greens and ALP have signed onto some basic principles that should guide any new legislation to protect charities. Article here. “The alliance also insists charities should be “free to cooperate on issues-based advocacy to advance issues of public interest, including by working with non-Australian citizens and non-permanent Australian residents”.
14th June – Op ed from Elaine Pearson, Human Rights Watch, Australia’s Government must guard against foreign interference, but not by curbing our rights, makes a vital point
The problem is that the laws’ national security definition is very expansive, including “the country’s political, military or economic relations with another country or other countries“.
The committee did not recommend tightening this definition. But the lack of specificity about what constitutes national security means that those who make public politically sensitive information could be guilty of espionage.
13th June – Trusting the government to protect civil liberties – that’s a sick joke – five NGO leaders outline their concerns
9th June –
A 400 page bi-partisan report was released late on a friday. Despite massive concerns from civil society groups
Great Op Ed piece from Claire at Amnesty – Security bill will muzzle human rights activists
7th June – Overhaul for Foreign Interference Laws in Bipartisan deal – AG Porter makes the case for passing EFI and FITS bills together “If one bill is passed without the other partner bill, then you don’t cover the full court of behaviours that are trying to prevent, and influence and interference will move to the area that is least protected.“So this EFI Bill being passed is a major if not colossal step forward in protecting our national security and our democratic system, but it must also be accompanied by the FITS Bill.”
PRIOR TO JUNE
- Legislation initially introduced December 2017
- Referred to committee December 2017
- Public submissions in the early months of the year