The decline of political freedoms in Australia
Australia’s government stands behind civil liberties and the democratic right to peaceful, or even disruptive, public protest. At least in other countries.
As evidence of this, last Sunday Tim Wilson, Liberal member for Goldstein and before that “freedom commissioner” on the Australian Human Rights Commission, marched with pro-democracy demonstrators on the streets of Hong Kong.
There were those who unkindly recalled his 2011 tweet, which suggested water cannons should be deployed on Occupy Melbourne protesters. But Wilson, it seems, has changed his mind about civil disobedience – just as he changed his mind about the Human Rights Commission, which he wanted abolished before the Abbott government appointed him to it with a $400,000 salary.
Wilson posted a picture of himself on social media with the caption “Proud to #StandWithHongKong”. Then, he did some media interviews.
On Sky News, he said he had been “inspired” by a speech made by one of the leaders of the pro-democracy movement, Joshua Wong, at a conference on democracy they both attended.
He added that the Morrison government had “made it quite clear” that it supports people’s right to protest.
“I think that the appropriate response is to stand for people’s rights, for freedom, to be able to protest and stand up for the type of country they want to be,” Wilson told Sky.
On ABC Radio in Melbourne, the Liberal MP condemned the Hong Kong administration as representative of the Chinese government, which is “an authoritarian regime”.
He continued: “Authoritarian regimes are oppressive and that’s why people are standing up for their future.”
Wilson, of course, is a backbencher; although he took it upon himself to speak on behalf of the government, he did not do so officially. But when Foreign Affairs Minister Marise Payne spoke the next day, she also was strongly in support of the right to protest, condemning the Hong Kong government’s authoritarian response to the democracy movement there.
Payne called on the government in Hong Kong, led by Carrie Lam, to “address the genuine concerns of Hong Kong citizens”, adding that “the invoking of emergency laws in Hong Kong with the prospect of further action” was “very concerning to Australia”.
Those emergency laws grant the Hong Kong government the power to make any regulations deemed necessary in a case of emergency or public danger. As part of the escalation of its response, the government banned the wearing of face masks – an attempt to make it easier to identify and prosecute protesters.
Back home in Australia we also have protests happening, notably by the Extinction Rebellion movement, which has embarked on a campaign of civil disobedience – blocking coalmining activities and city traffic – in the hope of forcing action on climate change. These demonstrations across the country have elicited some startlingly illiberal reactions.
At the extreme end, Studio 10 presenter Kerri-Anne Kennerley effectively suggested the death penalty for blocking traffic. “Use them as speed bumps,” she opined. “Put them in jail, forget to feed them.”
More subtle but of greater concern is the official response. The Queensland government is moving to fast-track laws that would jail climate demonstrators. In New South Wales, extraordinary bail conditions were imposed on some of those arrested in Extinction Rebellion actions, including former Greens senator Scott Ludlam. He and others were required “not to go near, or contact or try to go near or contact (except through a legal representative) any members of the group ‘Extinction Rebellion’ ”. Nor were they allowed to enter the Sydney central business district or go within two kilometres of the city’s town hall.
On Thursday, Ludlam’s bail conditions were overturned by NSW deputy chief magistrate Jane Mottley, after his legal team successfully argued they were “drafted so widely as to try to stifle legitimate political protests”.
For some in the federal government though, even these measures do not go far enough.
Last week, in his regular Thursday spot on Ray Hadley’s 2GB radio show, Home Affairs Minister Peter Dutton called for “mandatory or minimum” jail terms for protesters. He said they should be cut off from government payments.
Like Hong Kong’s chief executive, Carrie Lam, Dutton wanted dissidents identified. He advocated taking their names and photographs and distributing them “as far and wide” as possible, so people might be able to let them and their families “know what you think of their behaviour”.
In essence, he extended a public invitation to those opposed to the protests to engage in the doxing of demonstrators, and potentially vigilantism against them. “Mob justice”, in the words of shadow attorney-general Mark Dreyfus, QC.
The protesters were not Dutton’s only target. He also criticised a judicial system that meted out only “slap on the wrist” penalties to protesters.
“Over a long period of time in Queensland we have seen some appointments made by successive Labor governments which I think people have just shaken their head at,” he said.
On Thursday, speaking to Hadley again, he criticised the courts, saying they “just won’t impose a sentence” on climate protesters, with some demonstrators getting “even words of encouragement by some magistrates”.
The Home Affairs minister found support, at least on the matter of cutting off welfare payments to protesters, from Employment Minister Michaelia Cash.
While other senior members of the Morrison government also have called for tough action against protesters, they have neither endorsed nor criticised Dutton. Prime Minister Scott Morrison has been notably silent on the issue.
Beyond his advocacy of vigilantism, there was in fact little new in Dutton’s statements. Since its election six years ago, the Coalition – whether led by Tony Abbott, Malcolm Turnbull or Scott Morrison – has established a track record of attempting to curtail the activities of civil society organisations, particularly environmental ones. There have also been attacks on the judiciary, the stacking of legal tribunals with political partisans, and resistance to measures that would bring greater accountability and openness to the processes of government.
In the case of civil society groups, the government has cut funding or attempted to make public funding contingent on those groups reducing their advocacy work. As David Crosbie, chief executive of the Community Council for Australia, told me in 2017, the government would rather see green groups “picking up the dead fish instead of advocating to stop the poisons going into the stream”.
It has meanwhile tried to legislatively nobble activist groups, notably GetUp!, through provisions in legislation ostensibly intended to limit foreign interference and reform electoral funding. It has twice tried to have the Australian Electoral Commission declare GetUp! a related entity of Labor and the Greens and has twice been rejected.
Criticisms of the judicial process by members of the government have been regular. The most outstanding example came when three Coalition ministers – Greg Hunt, Alan Tudge and Michael Sukkar – narrowly escaped contempt of court charges over their comments in 2017 that judges of the Victorian Court of Appeal were soft on terrorists and hard-left activists.
Since the 2013 election, the government has appointed some 60 people with Coalition affiliations to the Administrative Appeals Tribunal, a body that reviews decisions made by the government. Many of these appointees lack any relevant qualifications. A report by former High Court judge Ian Callinan, delivered late last year, said non-lawyers should no longer be appointed to the AAT. As Karen Middleton reported in these pages in August, law enforcement agencies have taken to sidestepping the courts when seeking surveillance warrants for phone taps and email interceptions by going to the AAT in 78 per cent of cases.
And as to greater openness and accountability, this government – having long resisted the establishment of a national integrity commission to investigate potential corruption at a federal level – has now produced a model widely criticised by legal experts for being toothless.
This is a far-from-comprehensive accounting, but there are a few recent matters that deserve greater attention, beginning with the right to protest.
The apparent contradiction between the Morrison government’s position on disruptive protest overseas and its position on domestic protest was succinctly summarised by the ABC’s Jon Faine, in his interview with Wilson earlier this week. “So marching down the street in Hong Kong is okay, but marching down the street in Melbourne on climate is not?” asked the radio host.
Wilson avoided directly answering the question, but it seems a reasonable one. What is the difference between the “tens of thousands of, particularly, young people who are making a very clear stand because they see their future on the line” – to borrow Wilson’s words about the pro-democracy protesters in Hong Kong – and the thousands protesting the Australian government’s lack of action on climate change?
Pauline Wright, president of the New South Wales Council for Civil Liberties, sees hypocrisy in the government stance towards dissent.
“We’re very happy to criticise anti-democratic practices in other countries, but when it comes to our own, our record is appalling,” she says. “Australia’s treatment of people in offshore detention is another example. If that were happening in a country overseas, and we didn’t have it as a policy of ours, we’d be up in arms about it.”
In fact, the Morrison government has protested when other governments do – in July, Australia was one of 22 signatories to a letter to the United Nations high commissioner for human rights, Michelle Bachelet, taking China to task over the arbitrary incarceration of Muslim Uygurs and other minority communities in Xinjiang.
This week, delivering the Whitlam Oration in Sydney, Bachelet voiced her concerns about Australia’s “so-called offshore processing regime and prolonged mandatory detention of refugees and asylum seekers”.
She also shared her personal experience of seeking refuge in Australia: “When I was forced to flee my country, Chile, at the age of 23, Australia was my first place of safety – and Gough Whitlam was prime minister,” she said. “I experienced the solidarity of Australia with the Chilean people, and the tremendous warmth and hospitality of Australians.
“… Australia – and our world – have changed significantly since then.”
Bachelet also spoke to the declining trust of people in democratic institutions around the world. She referred to the Extinction Rebellion actions, happening in scores of countries, including Australia, and warned that the people would only become more disengaged if governments do not respond to such concerns with “responsive and responsible policies”.
The government’s treatment of the media, too, serves to cast an unfortunate light on the state of political freedoms in Australia. On successive days shortly after the election, the Australian Federal Police mounted raids of two media organisations.
The first, on the home of News Corp journalist Annika Smethurst, related to what the AFP called “the alleged unauthorised disclosure of national security information” over a story that revealed a security organisation, the Australian Signals Directorate, was pushing to broaden its powers to spy on Australian citizens.
The second, on the Sydney headquarters of the ABC, related to a series of stories based on leaked Defence Department documents, which detailed allegations of unlawful killings and other misconduct by Australian special forces in Afghanistan.
Neither story threatened Australia’s legitimate security concerns, but both were embarrassing for the government and its agencies.
Following harsh criticism from the Australian media and legal bodies, Attorney-General Christian Porter announced last month he had issued a directive to Commonwealth prosecutors not to charge journalists under certain sections of national secrecy laws without his formal approval.
As an attempt to placate his critics, Porter’s move was more than a failure. It was seen to further highlight the government’s determination to maintain political control of prosecutions.
As the president of the Law Council of Australia, Arthur Moses, SC, noted: “It puts the attorney-general, who after all is a politician, in the position of authorising prosecutions of journalists in situations where they may have written stories critical of his government.
“It creates an apprehension on the part of journalists that they will need to curry favour with the government or, in particular, the attorney-general in order to avoid prosecution.”
Professor George Williams, dean of law at the University of New South Wales, tells The Saturday Paper that it is “quite inappropriate” for the attorney-general to have such a discretion.
“It should be built into the laws, hard and fast. It should be down to judges. There should be defences of public interest and the like built in,” says Williams. “Good journalism shouldn’t be subject to political discretion.”
In a joint submission to the parliamentary joint committee on intelligence and security’s inquiry into the impacts of Australia’s national security laws on press freedom, Williams and Dr Keiran Hardy of the Griffith Criminology Institute noted that no fewer than 75 separate pieces of security legislation had been enacted since 2001.
“A disturbing number of these have the potential to affect press freedom,” they wrote. “… It is clear that these laws can be used to prosecute journalists and to otherwise prevent them from reporting on matters of public interest.”
Williams and Hardy’s submission offered not only a detailed critique of the ways in which journalism was under threat, but also the inadequacy of protections for whistleblowers, upon whom much of that journalism relies.
Australia’s whistleblower regime has been roundly criticised, but those provisions that relate to intelligence issues are particularly concerning, says Williams.
“There simply are no protections for whistleblowers when it comes to intelligence information,” he says.
“Here, a whistleblower can internally provide information to the inspector-general of intelligence and security but cannot go to the media or to politicians. So it’s a locked-down system.”
Williams contrasts this design with the regime in the United States, where the actions of a whistleblower recently sparked an impeachment inquiry into President Trump.
“In the US case, the whistleblower contacted the heads of relevant congressional committees [the intelligence committees of the senate and house of representatives]. We don’t have anything like the kind of protection that exists in the United States for the press, or for whistleblowers wanting to get their story out,” says Williams.
“Here, you are open to prosecution.”
In Australia, the attorney-general has discretion over prosecutions. Williams asks what happens, then, if the legal gatekeeper is “actually the target of good journalism, suggesting wrongdoing, or engagement in something that may embarrass the government”?
This is not a hypothetical example. Williams points to the prosecution of lawyer Bernard Collaery and his client, known only as Witness K, an intelligence agent who blew the whistle on Australia’s illegal activities in Timor-Leste in 2004.
These involved intelligence agents installing bugging devices to spy on the Timor-Leste government during negotiations over lucrative oil and gas deposits in the Timor Sea. This operation followed Australia’s withdrawal from an international agreement relating to the setting of maritime boundaries between countries.
Both Collaery and Witness K are now the subjects of a trial for allegedly having passed secret information to the Timor-Leste government and the media. The proceedings are so restricted even the judge involved could face 10 years’ imprisonment if he breaches the secrecy provisions.
For reasons that have never been made clear, former attorney-general George Brandis did not consent to Collaery and Witness K’s prosecutions. Instead his successor, Christian Porter, gave the go-ahead more than a dozen years after the alleged spying.
Attorney-General Porter told AAP this week that he wants to overhaul whistleblower protections as part of the legislation for the government’s new Commonwealth Integrity Commission, which will be finalised by the end of the year. No details were offered. Before then though, it is expected that Witness K will plead guilty. Collaery is fighting the charges.
In the US, whistleblowers have their rights and identities protected. In Australia, whistleblowers are prosecuted by our government. When people take to the street in Hong Kong, our government lauds them. When people protest here, it calls for them to be jailed.
These might seem to be unrelated phenomena, but they are not. They both go to the rights inherent in a democracy.
Considered together, they might give pause to consider Tim Wilson’s words this week about authoritarianism and oppression.
Particularly if you are stuck in traffic as a result of the climate change protesters.
This article was first published in the print edition of The Saturday Paper on Oct 12, 2019 as "Freedom reins". Subscribe here.