The laws are so broad that, if they had existed at the time, they could have been used to prosecute reporting on and advocacy about the live export trade – because the end to the practice had an impact on Australia’s economic relations with importing countries. The new laws could also capture submissions by NGOs to international bodies, like the United Nations, for example in relation to the treatment of refugees and asylum-seekers. As these examples show, the laws go far beyond anything required to protect Australians from “national security” threats, even if that is how the laws are framed. Rather, the laws reflect an attempt to silence criticism of governments and the acts they carry out in our name.
A number of civil society bodies, including the Law Council of Australia, raised concerns at the time the new espionage laws were drafted, warning of the “chilling” effect they could have on advocacy. Unlike journalists, NGOs and individual advocates are not protected by public interest defences that apply to some of the laws, as NGOs are not engaged in the business of publishing the news. This makes NGOs and individual advocates particularly vulnerable. The constitutionality of the laws is, as yet, untested and they arguably inappropriately burden the implied freedom of communication on political and governmental matters. For now, however, these new laws stand. To date, they have not been used – but the threat of prosecution is enough to stunt advocacy. That threat is now more real, following the AFP raids.
No individual or organisation should face a risk of criminal prosecution for calling out misuse or, worse, abuse of power by governments, whether they be a journalist, whistleblower, NGO or advocate.
In the aftermath of the AFP raids, plenty has (rightly) been said about the need for press freedom. The media’s ability to report freely on matters in the public interest – especially where such reporting is critical of government – is a necessary component of a robust democracy and is why the media is referred to as the Fourth Estate. But journalists are not the only ones holding governments to account. In the past, the voices of NGOs and other advocates have been essential to exposing government wrongdoing, and in pressing for change. If we want to defend our democracy, it is critical that press freedom is not the only conversation we have.
The criminalisation of dissent is often the first visible step in the slide towards authoritarianism. We must not allow our freedoms to be eroded under the politically expedient guise of “national security”. Our democracy is simply too precious.
Lou Dargan is the head of strategic litigation at Grata Fund.