By Matthew Da Silva
As Julian Assange tilts at the Senate, new laws have been passed that will make it harder for organisations like Wikileaks to operate legally – and there are more to come, writes Matthew da Silva
The Labor Government is tightening up Australian law in areas that will have a direct impact on organisations such as WikiLeaks. Only the Greens are challenging the new bills in parliament, and they are receiving scant media attention.
There’s a new extradition law that will make it easier for foreign governments to request extradition of Australians and a new spying law that broadens ASIO’s reach, which has been dubbed the WikiLeaks Amendment.
And finally there’s a bill that will make it easier to retain digital data for Australians, and easier also to pass that information to overseas law enforcement agencies. Senator Scott Ludlam, the Greens’ spokesperson for communications, told New Matilda that the Attorney-General wants all digital records for all people for all time to be trapped and recorded so that intelligence agencies, law enforcement agencies, and welfare agencies can mine the data.
The new extradition law contains elements that make it easier for foreign governments to request that people be extradited from Australia. The new federal law also enables people to be prosecuted in Australia for alleged crimes overseas.
The law was foreshadowed in November last year by Jeffrey Bleich, the US Ambassador to Australia, who told reporter Anne Davies of the Sydney Morning Herald when she asked him about WikiLeaks that, “We will have to see whether there is an offence against any person, and Australia will have to evaluate its own extradition obligations.” The new law passed last month.
Adam Fletcher of the Castan Centre for Human Rights Law at Monash University expressed surprise in a recent blog post that the law’s passage received no media coverage. It was passed “in the aftermath of the infamous Labor leadership showdown and when all eyes were on the Carr for Canberra drama”, Fletcher wrote.
The law would enable the government to prosecute WikiLeaks’ Julian Assange if he was living in Australia and had been charged with a crime in the US. Fletcher told me in a telephone interview that whatever Assange is accused of overseas must also be a criminal offence in Australia for any prosecution to take place here under the new law.
On 2 December 2010 Julia Gillard claimed that what Assange had done by releasing classified documents was “illegal” under Australia law, but this assertion was contradicted on 16 December 2010 by the Australian Federal Police. Two days later US vice president Joe Biden labelled Assange a “high-tech terrorist”.
It is now known that a secret grand jury has been constituted in Alexandria, Virginia, for the purpose of prosecuting Assange.
Fletcher agrees that the new law also contains elements that make it easier for foreign governments to extradite Australians. “Before this Bill, extradition had to be refused if the alleged crime was really in the nature of a political protest,” wrote Fletcher. Alleged terrorist offences and “any offence prescribed by [Australian] regulations” are among those that will no longer be considered political.
“The way [the Australian government explains] it, they’re party to a large number of treaties with other countries on extradition, and they all get negotiated separately and they have different terms,” Fletcher told New Matilda.
“What happens sometimes is that countries will request that certain offences that they’re particularly concerned about be excluded from, for example, a list of political offences, which would normally be grounds for Australia to refuse extradition.
“What [the Australian government] said is, ‘We will just have a list in the regulations which will be amended from time to time when we sign a new treaty. And that’s how we’ll determine which offences are political and which aren’t’.”
Fletcher argued on his blog that such a regime erodes transparency. “Regulations get tabled in parliament and they could be scrutinised, in theory, but in practice they don’t get anywhere near the same level of scrutiny as bills, which become acts,” he told New Matilda.
The Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 is not the only law relevant to WikiLeaks that has been pushed through under the radar in recent times. Witness the Intelligence Services Legislation Amendment Act 2011, which was rushed through parliament in June 2011 and significantly broadens ASIO’s remit.
Patrick Emerton, a senior lecturer in the Faculty of Law at Monash University, told New Matilda the new law both changes the definition of foreign intelligence and the grounds on which spying in pursuit of foreign intelligence can take place.
“Foreign intelligence, prior to the bill, had been confined to spying in relation to foreign governments and entities that they control, or foreign political organisations,” says Emerton.
“It’s now been redefined to refer to people or organisations outside Australia. So it’s much broader. That can make it interesting to ask, for example, [which] might be people or organisations [ASIO wants to investigate] outside Australia who are not foreign governments or entities controlled by foreign governments, or foreign political organisations? And it’s natural to think of a whole lot of private or semi-private organisations [that] come to mind.”
A Castan Centre submission to a Senate inquiry last year suggested that WikiLeaks could be a target.
“[Spying] used to be related to the defence of the Commonwealth of Australia or the conduct of the Commonwealth’s international affairs,” says Emerton. “Under the new definition the grounds become Australia’s national security, Australia’s foreign relations, or Australia’s national economic wellbeing.
He said that whereas issues to do with WikiLeaks don’t necessarily affect the conduct of the Commonwealth’s international affairs, they could appear to have an effect on Australia’s foreign relations.
The new law wouldn’t permit ASIO to spy on Julian Assange in London.
“But suppose he sent an email or a letter to a friend or a family member in Australia which was then accessed through a computer in Australia, or through a letterbox or a delivery service in Australia,” says Emerton. “Then ASIO could, conceivably, seek to spy on that.”
“The main line of criticism I would run is that the department in its submissions referred on multiple occasions to ‘gaps’,” he continutes. “’There are gaps in ASIO’s capabilities and these amendments will close those gaps.’ I guess my response to that is it’s part of a liberal democracy that there are gaps in the capabilities of spies. That’s the difference between Australia and East Germany.”
Lastly, there is the Cybercrime Legislation Amendment Bill, which affects how ISPs can be made to release internet traffic data. It would also make this information available to overseas law enforcement agencies.
Prime Minister Julia Gillard assumed responsibility for the government’s cyber security policy last year, little less than a month after US President Barack Obama’s two-day Australian visit.
Senator Scott Ludlam doesn’t think that the bill was written with WikiLeaks exclusively in mind but says they are “collateral”.
“I think it is part of a longer story of the government assigning agencies inappropriate degrees of power and latitude to spy on civil society organisations,” says Ludlam. “WikiLeaks, obviously, has assumed a really central role in the last couple of years informing those organisations around the world. So they have become a target.”
Ludlam is concerned about the fact that foreign jurisdictions can have different standards of evidence gathering to Australia, and also different standards for prosecuting different kinds of crimes.
He notes that, in addition to telephone intercepts and stored communications, which require a warrant and for which there are thresholds based on sentencing severity, there is “virtually no threshold” for telecommunications data. This can include IP addresses, latitude and longitudes, times and dates, and credit card records.
“They issue 250,000 of those every year to various agencies,” said Ludlam.
“That kind of data that’s being hoovered up by Australian agencies and collected together can then be shopped across to foreign law enforcement agencies according to completely different thresholds.”
“What I think is occurring, not just here but overseas, is these huge volumes and categories of data are becoming available that never existed before and various governments and agencies are just figuring it’s entirely their right to snoop on it because they can.”
If passed, the Cybercrime Legislation Amendment Bill will lower thresholds, enable access to more information and allow overseas agencies to access that information.
“And you won’t necessarily know,” says Ludlam. “You might be the target of a prosecution but you may not. The thing with the telecommunications warrant is that you may just have an association with somebody who is suspected of such an offense, but you may have done nothing wrong whatsoever”.
“But by virtue of communicating with these people, whoever [law enforcement] may [have] targeted at any given time, that’s all your material being scooped up as well.”
“The Government is up to a lot of dodgy things besides persecution of WikiLeaks,” said Ludlam, who adds he doesn’t have evidence the laws were drafted with this intention in mind. But, he continues: “I think all three of the laws could be used in malign ways to harm the work of WikiLeaks, in different ways.”
The WikiLeaks Law and the extradition law passed through parliament with the support of both Labor and the Coalition. The Cybercrime Bill likewise quickly passed the Lower House last year. In the Senate, the Greens are questioning the bill — but there appears to be overwhelming support from both major parties for tougher laws that give governments more power to monitor organisations that are socially innovative.