Introduction

On November 28, 2010 WikiLeaks—in conjunction with other major media organisations—began publishing classified United States diplomatic cables, detailing correspondence between the US State Department and its diplomatic missions around the world.

The publication of these cables has had an enormous impact upon world affairs. In its 2011 Annual Report, the human rights organisation ‘Amnesty International’ nominated the publication as a major catalyst in a series of uprisings against repressive regimes in the Middle East and North Africa—the so-called ‘Arab Spring’. [1]

Not everyone has welcomed the revelations contained in the WikiLeaks publications quite so warmly, however, and governments around the world have begun to implement measures designed to stifle such activity.

In Australia, these measures are being implemented by way of a series of amendments to laws governing the operations of the state’s intelligence and security apparatus.

Background

In an interview with Fairfax Radio conducted just days after the first cables were published, Australian Prime Minister Julia Gillard declared “I absolutely condemn the placement of this information on the WikiLeaks website—it’s a grossly irresponsible thing to do and an illegal thing to do”. [2]

This alleged legality, however, was not at all as straightforward as PM Gillard imagined.

Less than a week later, PM Gillard retreated from her claim, unable to nominate any Australian law WikiLeaks may have broken in publishing the cables. Gillard later claimed that “The foundation stone of it is an illegal act… It would not happen, information would not be on WikiLeaks, if there had not been an illegal act undertaken.” [3]

An investigation by Australian Federal Police into WikiLeaks subsequently concluded that it was unable to establish “the existence of any criminal offences where Australia would have jurisdiction”. [4]

As of this date, no charges have been filed against WikiLeaks for publishing the cables. However, US Army intelligence analyst Bradley Manning—currently being held in an Army prison in Fort Leavenworth, Kansas—faces multiple charges in relation to the alleged leak, and if found guilty could receive a life sentence. [5] Further, WikiLeaks and its supporters are currently the subject of a Grand Jury investigation in what journalist Glenn Greenwald describes as “part of a much broader campaign by the Obama administration to crack down on leakers”. [6]

Amending the Law

Having failed to discover an Australian law under which WikiLeaks could be prosecuted, in early 2011, [7] the Gillard Government introduced a new Bill into the Federal Parliament: the Intelligence Services Legislation Amendment Bill 2011. [8]

This legislation—dubbed “the WikiLeaks amendment”—considerably broadens the legal powers available to ASIO to investigate matters of concern to the state, especially as it relates to the activities of “foreign” organisations. The amendment has important implications for all members of civil society engaged in the investigation, reportage and critical scrutiny of matters state authorities believe are best kept out of public discourse. [9]

In May, Philip Dorling of The Age wrote:

Government sources told The Age last year that there was legal ambiguity over whether ASIO could collect intelligence on WikiLeaks under its foreign intelligence collection function. The issue turned on whether WikiLeaks could be defined as a “foreign political organisation”.

Last week the government introduced legislation to define ASIO’s role more broadly to include collection of intelligence “about the capabilities, intentions or activities of people or organisations outside Australia.”

According to the government the proposed amendment, known informally as “the WikiLeaks amendment”, reflects “the changing nature of threats to Australia, since activities undertaken by non-state actors, whether individually or as a group, can also threaten Australia’s national interest”. [10]

The legislation has been warmly received by the Opposition and rushed through the Parliament, with the only criticisms from within Parliament being voiced by the Greens.

On June 23, the Greens “warned… that a Government plan to significantly broaden ASIO’s mandate was unjustified and dangerous”. [11] Questioned by WA Greens Senator Scott Ludlum before the ‘Legal and Constitutional Affairs Committee’ on May 25, 2011:

The Head of ASIO was very resistant to discussing Wikileaks, neither confirming nor denying anything. Mr Irvine hadn’t read the submissions from legal experts into the Bill currently before the parliament that will dramatically expand his agency’s ability to spy on civil society organisations like Wikileaks. [12]

Senator Ludlum also noted that questioning revealed that “it took 6 AFP officers a total of 18 days to conclude that Wikileaks had broken no Australian criminal offence and there was no basis for an investigation”. [13]

Media inquiry

In addition to the Fairfax press, The WikiLeaks Amendment has been closely examined by Bernard Keane in the independent online news source Crikey. Keane notes that the current definition of a “foreign organisation”:

…allows ASIO to apply to the attorney-general to spy on foreign governments or foreign political organisations, but would be dramatically widened under the amendment to allow spying in relation to anything to do with “the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being”. [14]

The Government’s seeming inability to explain the rationale behind the amendment at the Senate inquiry prompted it to make an extraordinary third submission (its second submission sought to respond to issues raised by the Castan Centre for Human Rights Law) in which it claimed that the amendment would provide “authorities with a better understanding of illegal fishing operations, and enable the relevant Australian authorities to take appropriate action internationally. Illegal fishing puts at risk Australian jobs, investment and the sustainability of fish stocks.”

As Keane wryly commented, “So there you have it—the one clear example of why the government wants a significant expansion in ASIO’s foreign intelligence remit is to provide it with “a better understanding of illegal fishing operations”. It has nothing to do with WikiLeaks, but is all about the fish.” [15]

Something fishy

There is indeed something very fishy about the “WikiLeaks amendment”, from its timing to its bi-partisan support within (and speedy passage through) the Parliament, the absence of any clear rationale for its introduction, and its exceedingly wide potential application.

In addition to the Greens and some journalists, the Law Council of Australia, the Federation of Community Legal Centres (Vic), and the Castan Centre for Human Rights Law have raised objections to the amendment in their submissions to the Senate inquiry. The Castan Centre’s comments on the amendment and its potential impact upon WikiLeaks operations are worth quoting at length. It makes particular note of the fact that:

…amendments would permit ASIO a much wider scope to investigate the activities of Australians who are overseas, and whose activities do not pose any threat to Australia’s security, but perhaps do have implications for Australia’s foreign relations or economic interests. This could include Australians involved in non-violent political activities abroad, which while posing no threat to Australia’s security, and not involving any foreign political organisations, might nevertheless be seen as having implications for Australia’s foreign relations (for example, because they would be perceived adversely by the government of the country in which such activities were taking place). An example of such activities might include the release of secret government information by an Australian living abroad, such as has been the case in respect of Julian Assange and Wikileaks. Currently, information about Wikileaks probably would not constitute foreign intelligence – because Wikileaks is (arguably) not a foreign political organisation, and its activities do not threaten Australia’s security (as defined in section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth)). But Wikileaks is an organisation, and Mr Assange is a person, outside Australia, and their activities evidently do have implications for Australia’s foreign relations. This example shows how the notion of “person or organisation outside Australia”, combined with the notion of “Australia’s foreign relations”, very considerably expands the scope of ASIO’s potential activities. [16]

Given the broader political context, both domestic and foreign, in which it has been made, there is every reason for Australian citizens to be concerned about The WikiLeaks Amendment. The amendment allows ASIO greater powers to target WikiLeaks and related organisations, and the attack on human and civil rights it represents can, should and must be resisted.

Notes

[1] Amnesty International hails WikiLeaks and Guardian as Arab spring ‘catalysts’, The Guardian, May 13, 2011.
[2] ‘WikiLeaks acting illegally, says Gillard’, AAP, December 2, 2010.
[3] ‘Julia Gillard can’t say how WikiLeaks founder Julian Assange has broken the law’, AAP, December 7, 2010.
[4] ‘Media Statement: Finalisation of WikiLeaks referral’, Australian Federal Police Media Statement, December 17, 2011.
[5] ‘Wikileaks: Suspect Bradley Manning faces 22 new charges’, BBC, March 2, 2011.
[6] ‘The WikiLeaks Grand Jury and the still escalating War on Whistleblowing’, salon.com, May 11, 2011.
[7] http://www.robertmcclelland.com.au/2011/03/23/introduction-of-legislation-to-support-national-security-agencies/
[8] http://www.comlaw.gov.au/Details/C2011B00041.
[9] The amendment was preceded by the Telecommunications Interception and Intelligence Services Legislation Amendment Act passed—with the support of the Opposition—in March 2011. It expanded ASIO’s ability to share with other agencies information obtained from wiretaps and computer access.
[10] ‘ASIO eye on WikiLeaks, Philip Dorling, The Age, May 23, 2011.
[11] ‘Planned Boost in ASIO Power Sparks Warning’, June 23, 2011.
[12] ‘Overestimated – Senate Estimates, Winter 2011’, June 15, 2011.
[13] For further details, see the ‘Dissenting Report by the Australian Greens’.
[14] ‘Mysteries of the ASIO amendment survive Senate scrutiny’, June 17, 2011.
[15] ‘ASIO: fishers of men’, June 21, 2011.
[16] http://www.law.monash.edu.au/castancentre/publications/intel-services-legislation-amend-bill.pdf Also http://www.law.monash.edu.au/castancentre/publications/intel-services-legislation-amend-bill-supp.pdf