Sent: Wednesday, 24 May 2017 11:47 AM
To: ‘xxxxxxxxxxxxx, xxxxxxxx (Senator)’
Subject: FW: Australian parliamentary inquiry into whistleblowers withholds key information from public:
Dear Senator XXXXXXXXXX,
Thank you for your earlier emailed comments. Unfortunately the Committee has again rejected my submission (attached), and has also refused to provide any reasons for doing so.
For your interest, I have provided details of the UNHRC report by Michael Forst (18 Oct 2016) that documents ASIO abuse of whistleblowers (UNHRC report link below, and SMH article attached). In particular I draw your attention to the section on the impact on “Freedom of expression” (below) posed by security laws and note the “chilling effect” ASIO has on whistleblowers across the community.
The intelligence agencies can and do have a detrimental impact on whistleblower freedom of speech and immunity. The Committee overseeing the Australian parliamentary inquiry into whistleblowers (currently underway) appears to be a captive or fake inquiry, with the Committee electing not to accept submissions that reveal the impact of ASIO retribution on whistleblowers (as my submission highlights). Without addressing this critical issue Australian whistleblowers will remain vulnerable to vindictive reprisals by the intelligence agencies no matter how much legislation is enacted to protect them from corporate payback. The Committee’s decision to withhold this information from the public unfortunately misleads the Australian public as to the extent of the risks faced by whistleblowers and also misleads the public as to the quality of the solutions or safeguards being offered by the Committee.
Freedom of expression
Freedom of expression and press freedom are not only key elements of a vibrant democracy but also vital components of a healthy civil society. Through exercising free speech, journalists and human rights defenders can ensure free flow of information, inform the public about social matters, and strengthen transparency and accountability in government.
However, during my visit I have observed that new laws and policies have often increased secrecy provisions, particularly in the areas of immigration and national security. Under international law, free speech may only be constrained where it is reasonable, proportionate and necessary, either to protect the rights or reputation of others, or to protect national security, public order or public health.
Human rights defenders and journalists have a right to seek information about governmental activities, and such information should be accessible unless there is specified protection need. Australia however has hundreds of secrecy laws that unnecessarily restrict access to government information. Section 70 of the Crimes Act has a broad prohibition for public servants and contractors to disclose government information in breach of confidentiality obligations, which is punishable with 2 years of imprisonment. Section 79 of the Act criminalizes the receipt of “unauthorized” information, which is of potential concern to journalists.
The Australian Law Reform Commission recommended in 2010 to reduce the scope of secrecy laws so that disclosures are considered to be unlawful if they harm essential public interests. However, the recommendation has not been implemented by the Government. Instead secrecy provisions have been reinforced, including through the controversial Australian Border Force Act. The Act makes it a criminal offence, punishable by two years’ imprisonment, for a broadly-defined “entrusted person” to make record or disclose “protected information”, which was obtained by a person in his/her capacity of “entrusted person”.
Related provisions further threaten human rights defenders, journalists and others who abet, counsel or procure unlawful disclosure.
The cumulative factor of such laws has created significant barriers to legitimate whistleblowing on human rights abuses or misconduct in government activities. It has also led to a worrying trend of pressures exerted by the Government on civil society through intimidation and persecution. I have received credible reports of doctors, child protection officers and even academicians who have suffered.
I am aware of exemptions provided for disclosures required by law or to prevent or lessen a serious threat to individual life or health. There is also limited protection to whistleblowers under the Public Interest Disclosure Act, which requires substantive improvements in terms of awareness, training and implementation. It is clear however that many potential whistleblowers will not take the risk of disclosing because of the complexity of the laws, severity and scope of the penalty, and extremely hostile approach by the Government and media to whistleblowers.
Secrecy laws in the area of national security have also been expanded through the adoption of section 35P of the Australian Special Intelligence Operation Act, which bans disclosure of information related to an ASIO “special intelligence operation” with the penalty ranging from five to ten years’ imprisonment. Given the overall secrecy of intelligence operations and without confirmation from ASIO, it is challenging for journalists to determine if an activity of interest would be a special intelligence operation. Due to the high risks, the provision may lead to self-censorship by the media that will take a more cautious approach to reporting on ASIO’s activities.
The Parliamentary Joint Committee on Human Rights advised that the section 35P was not a reasonable, necessary and proportionate limitation on the right to freedom of expression. The Independent National Security Monitor urged the section 35P to be redrafted as it creates a “chilling effect” and uncertainty as to what may be published about the activities of ASIO without fear of prosecution, and that journalists are prohibited from publishing anywhere at any time any information relating to a special intelligence operation, regardless of whether it has any operational or continuing significance and even if it discloses reprehensible conduct by ASIO insiders.
Furthermore, the new national security laws, dealing with a data-retention scheme to retain metadata for two years, have had serious implications for journalists and whistleblowers. They have mandated the stockpiling of huge rafts of metadata of individuals, reportedly giv¬ing law enforcement agencies the means to identify jour¬nalists’ confidential sources. I have heard numerous testimonies from journalists that it has had a cumulatively constraining impact on the Australian media’s freedom to in¬form the public and hold government accountable, as well as has dampened confidence of whistleblowers to engage with the press to that effect.
Access to information is a critical element of freedom of expression. However, there is reported antipathy among some public servants towards the Freedom of Information provisions, due in part to a lack of resources dedicated to meeting FoI applications but also a general fear of what exposure of information may mean. This antagonism is becoming more widespread and increasingly public to the extent that FoI laws are being described as “pernicious”.
Furthermore, human rights defenders, journalists and lawyers filing FoI applications have reported significant challenges in obtaining the requested information. Increasingly, those applications are immediately denied, triggering an appeal process, or delayed up to 3 to 6 months, granted with substantially redacted material or demanded to pay huge costs for the requested information, resulting in non-pursuit of the initial request.
In 2014, the Government introduced the Freedom of Information Amendment (New Arrangements) Bill, proposing the closure of the Office of the Australian Information Commissioner. Due to the inability to get the bill passed in the Senate, the Information Commissioner is still functioning. However since 2015 the organization’s functions of advice, reporting and FOI merits reviews and complaints were redistributed among three other government agencies, the Attorney-General’s Department, Administrative Appeals Tribunal and Ombudsman. Costs of administering the privacy and FOI functions have been shared across those agencies. While, reportedly Australian Human Rights Commission has had to part with around 5,5 million AUD from its annual budget. Despite this, Government senior officials continued to publicly state their intention to abolish the Office of Australian Information Commissioner.
The Government’s approach to freedom of information ranging from lukewarm acceptance to active antipathy is surprising, given its vocal commitment to finalize its membership of the Open Government Partnership by developing a two-year plan of reform commitments consistent with the goals of the Partnership. I reiterate that those goals are aimed at promoting transparency, empowering citizens, fighting corruption and harnessing new technologies to strengthen governance. I urge the Government to adopt a more supportive position to ensuring freedom of information in the country.
– See more at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E#sthash.IUW89ur6.dpuf