tag:theconversation.com,2011:/us/topics/security-laws-12661/articlesSecurity laws – The Conversation2024-03-20T19:55:20Ztag:theconversation.com,2011:article/2261862024-03-20T19:55:20Z2024-03-20T19:55:20ZWhat Article 23 means for the future of Hong Kong and its once vibrant pro-democracy movement<p><em>Lawmakers in Hong Kong <a href="https://www.washingtonpost.com/world/2024/03/19/hong-kong-article-23-security-law/">passed new security legislation</a> on March 19, 2024, handing authorities in the semi-autonomous city-state further power to clamp down on dissent.</em></p>
<p><em>The law, under <a href="https://www.aljazeera.com/news/2024/3/19/what-is-article-23-hong-kongs-new-draconian-national-security-law">Article 23</a>, has been decades in the making but was resisted for a long time by protesters who feared the legislation’s effect on civil liberties in Hong Kong, a special administrative region in China that has become increasingly under the thumb of Beijing.</em></p>
<p><em>To explain what the adoption of Article 23, which is set to be signed into law on March 23, 2024, means for the future of Hong Kong, The Conversation turned to Michael C. Davis, a <a href="https://jgu.edu.in/jgls/prof-michael-c-davis/">law professor</a> who taught constitutional law and human rights in Hong Kong for more than 30 years, most recently at the University of Hong Kong, and is the author of “<a href="https://cup.columbia.edu/book/freedom-undone/9781952636448">Freedom Undone: The Assault on Liberal Values in Hong Kong</a>.”</em></p>
<hr>
<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/what-article-23-means-for-the-future-of-hong-kong-and-its-once-vibrant-pro-democracy-movement-226186&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p><em>You can listen to more articles from The Conversation, narrated by Noa, <a href="https://theconversation.com/us/topics/audio-narrated-99682">here</a>.</em></p>
<hr>
<h2>What is the background to Article 23?</h2>
<p>Article 23 has a lengthy backstory. It is an article in the <a href="https://www.basiclaw.gov.hk/en/index/">Basic Law of Hong Kong</a> requiring the Hong Kong government to enact a local ordinance governing national security. The Basic Law itself is effectively the constitution of Hong Kong. Its promulgation by the central government was part of China’s obligation under the Sino-British Joint Declaration of 1984 – the treaty providing for Hong Kong’s return to China. Thirteen years later, in 1997, the <a href="https://www.bbc.com/news/world-asia-china-40426827">territory was transferred to Chinese rule</a> after more than a century under the British. </p>
<p>The Basic Law established a largely liberal constitutional order for post-handover Hong Kong. This included guarantees of the rule of law and basic freedoms, as well as a promise of ultimate universal suffrage. It was formally adopted by China’s National People’s Congress in 1990.</p>
<p>Basic Law Article 23 requires the Hong Kong government to “on its own” enact certain national security laws relating to treason, secession, sedition, subversion or theft of state secrets, and to regulate foreign organizations.</p>
<p>The Hong Kong government first put forward an Article 23 bill in 2003. But due to concerns over the implications for press and organizational freedoms, as well as expanded police powers, the proposed bill <a href="https://www.bbc.com/news/world-asia-china-68594448">met with widespread opposition</a>.</p>
<figure class="align-center ">
<img alt="A uniformed police officer puts his fingers in his ears in front of a sign that has the number 23 crossed out." src="https://images.theconversation.com/files/583128/original/file-20240320-16-thmm5q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/583128/original/file-20240320-16-thmm5q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/583128/original/file-20240320-16-thmm5q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/583128/original/file-20240320-16-thmm5q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/583128/original/file-20240320-16-thmm5q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/583128/original/file-20240320-16-thmm5q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/583128/original/file-20240320-16-thmm5q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Noisy protests help defeat an earlier version of Article 23 in 2003.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/police-officer-puts-his-fingers-in-his-ears-to-protect-news-photo/1258921548?adppopup=true">Peter Parks/AFP via Getty Images)</a></span>
</figcaption>
</figure>
<p>A group of seven leading lawyers and two legal academics, including myself, challenged the proposed bill in a collection of pamphlets that highlighted its deficiencies under international human rights standards. Meanwhile, <a href="https://www.scmp.com/news/hong-kong/politics/article/3178339/july-1-2003-500000-take-hong-kongs-streets-protest-against">half a million protesters</a> took to the streets of Hong Kong. </p>
<p>In the face of such opposition and the consequent withdrawal of support by a leading pro-goverment party, the bill was withdrawn. </p>
<p>Rather than come forward with a replacement bill that would address human rights concerns, the government opted to let Article 23 languish for two decades.</p>
<p>Then, in 2020, Beijing <a href="https://www.amnesty.org/en/latest/news/2020/07/hong-kong-national-security-law-10-things-you-need-to-know/">imposed a national security law</a> that gave Hong Kong authorities greater power. It led to the <a href="https://www.reuters.com/world/asia-pacific/one-year-hong-kong-arrests-117-people-under-new-security-law-2021-06-30/">arrest and repression of opposition figures</a> in Hong Kong, silencing the once-vibrant democracy movement. </p>
<p>With no effective opposition left and the threat of arrest for anyone who speaks out, the pro-Beijing Hong Kong government decided now was the time to ram through a more extreme version of the bill.</p>
<p>The Hong Kong government, with Beijing’s encouragement, was able to open up a short consultation on the new Article 23 legislative proposal with little or no opposition expressed. </p>
<p>The process was facilitated by a “<a href="https://www.reuters.com/world/china/hong-kong-patriots-only-election-falls-flat-with-record-low-turnout-2023-12-11">patriots only” electoral system</a> imposed by Beijing in 2021 that has tightened Beijing’s grip over the Hong Kong legislature, leading to unanimous support for the bill.</p>
<h2>How will it affect civil liberties in Hong Kong?</h2>
<p>In tandem with the 2020 Beijing-imposed national security law, the new Article 23 legislation will have a dramatic effect on civil liberties.</p>
<p>The national security law – with its vague provisions on secession, subversion, terrorism and collusion – has already been used along with a colonial-era sedition law to arrest and silence dissent in Hong Kong. Many opposition figures <a href="https://www.nytimes.com/2024/03/20/world/asia/hong-kong-democracy-leaders.html">are in prison or have fled into exile</a>. And those with dissenting views who remain have largely gone silent. </p>
<p>The draft bill expands on the national security law in key areas: the stealing of state secrets, insurrection, sabotage and external interference in Hong Kong.</p>
<p>It essentially embraces mainland China’s comprehensive national security regime, which has long focused on suppressing internal opposition, targeting numerous areas of local civil life, impacting organizational, press and academic freedoms.</p>
<p>Included in Article 23 is the adoption of the mainland’s <a href="https://www.nytimes.com/2024/02/28/world/asia/china-state-secrets-law.html">broad definition of “state secrets</a>,” which can even include reporting or writing on social and economic development policies. </p>
<p><iframe id="6v2wZ" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/6v2wZ/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>The legislation expands the potential use of incarceration with both lengthy sentences upon conviction and longer holding of suspects before trial.</p>
<p>Article 23 also intensifies <a href="https://www.theguardian.com/world/2024/jan/30/hong-kong-article-23-new-national-security-laws-explained-what-do-they-mean">scrutiny of “foreign influence</a>” – making working with outsiders risky for Hong Kong citizens.</p>
<p>The draft legislation speaks disparagingly of activism under the guises of fighting for or monitoring human rights and is critical of “so-called” nongovernmental organizations.</p>
<p>All of this makes working with or supporting international human rights organizations perilous. </p>
<p>In short, in the space of two decades, Hong Kong’s liberal constitutional order has been transformed into a national security order with weak or no protections for basic freedoms.</p>
<h2>What is the wider context to Article 23?</h2>
<p>To understand this legislation, one must appreciate the Chinese Communist Party’s deep hostility to liberal values and institutions, such as the rule of law, civil liberties, independent courts, a free press and public accountability. Such liberal ideas are viewed as an existential threat to party rule. </p>
<p>This mindset has led to a dramatic expansion of the party’s <a href="https://www.voanews.com/a/china-vows-to-safeguard-national-security-with-new-laws-at-conclave-/7520474.html">national security agenda</a> under current leader Xi Jinping. </p>
<p>Beijing has emphasized economic development in recent decades, staking its legitimacy on economic growth – betting that people will care more about their standard of living than about political freedoms. But as <a href="https://www.cnbc.com/2024/01/15/china-needs-reforms-to-halt-significant-growth-declines-imf-chief.html">growth declines</a>, leaders’ concerns about security and dissent have grown, placing such security even above economic development.</p>
<p>This has led to the comprehensive national security concept now being imposed on Hong Kong. </p>
<p>With Beijing advancing an agenda that casts liberal, democratic ideas as a threat, a liberal Hong Kong on the country’s border became impossible for the Chinese Communist Party to ignore.</p>
<figure class="align-center ">
<img alt="A group of protesters shelter under umbrellas" src="https://images.theconversation.com/files/583131/original/file-20240320-18-8saqyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/583131/original/file-20240320-18-8saqyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/583131/original/file-20240320-18-8saqyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/583131/original/file-20240320-18-8saqyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/583131/original/file-20240320-18-8saqyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/583131/original/file-20240320-18-8saqyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/583131/original/file-20240320-18-8saqyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protestors in Hong Kong use umbrellas as improvised shields in 2019.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protestors-using-improvise-shield-to-push-toward-police-news-photo/1191713262?adppopup=true">Kwan Wong/NurPhoto via Getty Images</a></span>
</figcaption>
</figure>
<p>Widespread <a href="https://www.bbc.com/news/world-asia-china-48607723">protests in Hong Kong in 2019</a> both exacerbated this concern and offered an opportunity for Beijing to address the perceived threat under the <a href="https://www.globaltimes.cn/page/202112/1240540.shtml">claim that protesters were advancing a so-called “color revolution</a>.”</p>
<p>Having long nurtured its loyalist camp to rule Hong Kong, these loyal officials became the instrument of the crackdown.</p>
<h2>What does the lack of protest now say about the pro-democracy movement?</h2>
<p>It tells us that the mainland national security regime imposed on Hong Kong has effectively intimidated the society, especially those with opposition views, into silence. </p>
<p>Hong Kong’s pro-democratic camp had <a href="https://doi.org/10.4000/chinaperspectives.5563">historically enjoyed majority support, at around 60%</a> of the voters in the direct elections that were allowed for half of the legislative seats.</p>
<p>The introduction of loyalists-only elections led to a dramatically reduced turnout.</p>
<p>This and emigration patterns tend to show that the majority of Hong Kong people do not support this new illiberal order.</p>
<p>Be that as it may, with most of their pro-democratic leaders either in jail or exile, they dare not speak out against the new national security regime.</p><img src="https://counter.theconversation.com/content/226186/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael C. Davis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the space of two decades, Hong Kong’s liberal constitutional order has been transformed into a security regime that grants citizens few civil libertiesMichael C. Davis, Professor of Law and International Affairs, O.P. Jindal Global UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1214112019-08-13T04:12:43Z2019-08-13T04:12:43ZWhy an Australian charter of rights is a matter of national urgency<figure><img src="https://images.theconversation.com/files/287794/original/file-20190813-9927-1cfjqfn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia is the only Western democracy without some form of charter of rights legislated by parliament or entrenched in the constitution.</span> <span class="attribution"><span class="source">Lukas Coch/AAP</span></span></figcaption></figure><p>If anyone doubts the need for a charter of rights in Australia, the <a href="https://theconversation.com/will-the-high-court-ruling-on-public-servants-tweets-have-a-powerful-chill-on-free-speech-121556">Banerji decision of the High Court</a> handed down last week demonstrates why legislative protection for our common law freedoms has become a matter of national urgency.</p>
<p>We have it from the most authoritative source. The High Court has confirmed unanimously that Australians do not have a personal right to freedom of speech. </p>
<p>Most Australians might be surprised to learn this, but this is one of the consequences of Australia being the only Western democracy without some form of charter of rights legislated by parliament or entrenched in the constitution.</p>
<h2>A ‘freezing’ effect on free speech</h2>
<p>The High Court is technically right. The constitution does not explicitly protect the right to freedom of speech. In its ruling, the court upheld the government’s right to sack Michaela Banerji, a public servant, for her critical tweets about the indefinite detention of refugees offshore, among other concerns. </p>
<p>It was a highly technical and narrow interpretation of the law. It failed to acknowledge the common law right to freedom of expression, which is as ancient as the <a href="https://www.history.com/topics/british-history/english-bill-of-rights">English Bill of Rights 1689</a>. It also failed to recognise Australia’s international treaty obligations. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/will-the-high-court-ruling-on-public-servants-tweets-have-a-powerful-chill-on-free-speech-121556">Will the High Court ruling on public servant’s tweets have a 'powerful chill' on free speech?</a>
</strong>
</em>
</p>
<hr>
<p>The <a href="http://eresources.hcourt.gov.au/downloadPdf/2019/HCA/23">High Court acknowledged</a> that, had this case arisen in Canada, the <a href="https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html">Canadian Charter of Rights and Freedoms</a> might have provided some protection. </p>
<p>With respect to free speech, the Canadian Supreme Court <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/764/index.do">has adopted</a> the test of “minimum impairment” guaranteed by its charter. The court has said that a blanket ban on critical comments by public servants is not “justified in a free and democratic society”. Any restriction on the freedom of expression of a public servant must not go </p>
<blockquote>
<p>beyond what [was] necessary to achieve the objective of an impartial and loyal civil service.</p>
</blockquote>
<p>A similar charter protection in Australian law may not have saved Banerji on the facts of her case, as it is arguably necessary to protect the integrity of the public service. But the impact of the High Court’s decision is likely to have a chilling, if not freezing, effect on the liberty of public servants to speak up fearlessly when governments abuse their powers or trample on fundamental freedoms. </p>
<p>This is especially worrying as public officials are often in the best position to know.</p>
<h2>Further restrictions on common law freedoms</h2>
<p>Timing, of course, is everything. The Banerji decision comes in the middle of a national debate about the need for <a href="https://theconversation.com/why-the-israel-folau-case-could-set-an-important-precedent-for-employment-law-and-religious-freedom-118455">religious freedom protections</a> in the Israel Folau case, and the threats to <a href="https://theconversation.com/media-chiefs-unite-on-press-freedom-but-will-it-result-in-any-action-119405">press freedom</a> posed by recent federal police raids on a News Corp journalist and the ABC. </p>
<p>It is more than ironic the government should also be <a href="https://www.theguardian.com/australia-news/2019/aug/10/witness-k-and-the-outrageous-spy-scandal-that-failed-to-shame-australia">prosecuting Bernard Collaery</a>, a former attorney-general for the ACT, for espionage. His alleged offence was to provide legal advice to Witness K, a whistleblower who <a href="https://www.abc.net.au/news/2019-08-06/witness-k-to-plead-guilty-lawyer-bernard-collaery-face-trial/11387046">recently agreed to plead guilty</a> to releasing information about Australia’s spying activities in Timor-Leste.</p>
<p>Less sensational, but a serious restriction on our common law freedoms, are the <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/CounterTerrorism">laws introduced since 2001 to counter the threat of terrorism</a>. These laws <a href="https://www.cambridge.org/core/books/911-effect/8928404A0FEC0B2A22C7E3415272BBB6">have been coined “hyper-legislation”</a>, as they are more extensive and intrusive than those adopted by other nations. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-a-charter-of-rights-could-protect-australians-fundamental-freedoms-81947">How a charter of rights could protect Australians' fundamental freedoms</a>
</strong>
</em>
</p>
<hr>
<p>The <a href="https://www.legislation.gov.uk/ukpga/1998/42/contents">UK’s Human Rights Act</a> has provided guidance to courts when rejecting laws passed in the name of national security that breach fundamental freedoms. </p>
<p>In the <a href="https://www.theguardian.com/uk/2004/dec/17/terrorism.humanrights3">Belmarsh case in 2004</a>, for example, the House of Lords condemned the detention of suspected terrorists who had not had the benefit of a criminal trial. The court found their detention was not rationally related to the perceived threat to national security and was illegal.</p>
<p>Since 2001, respective Australian governments, supported by opposition parties, have granted unprecedented powers to security and intelligence agencies and discretionary powers to ministers. There have not been compelling national security reasons for granting these powers, nor are these powers reviewable, for practical purposes, by our courts. </p>
<p>Among the many examples of legislative overreach in Australia since then are the <a href="https://www.legislation.gov.au/Details/C2015A00039">Data Retention Act</a>, <a href="https://www.legislation.gov.au/Details/C2014A00116">Foreign Fighters Act</a>, <a href="https://www.legislation.gov.au/Details/C2018A00067">Espionage and Foreign Interference Act</a>, <a href="https://www.theguardian.com/technology/2018/dec/08/australias-war-on-encryption-the-sweeping-new-powers-rushed-into-law">de-encryption provisions</a>, <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/ASIO/Report/section?id=committees%2Freportjnt%2F024080%2F24748">laws expanding detention for questioning</a>, and <a href="https://www.hrlc.org.au/news/2018/1/30/governments-over-the-top-secrecy-laws-will-create-more-problems-than-they-will-fix">secrecy laws applicable to offshore detention and security operations</a>. </p>
<p>There are also countless apparently minor intrusions on our rights. In 2014, the Australian Law Reform Commission <a href="https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_127_interim_report.pdf">found at least 121 laws</a> infringe our democratic freedoms, from mandatory sentencing laws to restrictions on environmental protests.</p>
<p>Sadly, traditional common law rights that might protect us from such legislative excesses are all too readily ignored by the courts. </p>
<h2>Would a charter lead to greater judicial power?</h2>
<p>How would a charter of rights ensure that government intrusions on our liberties are reasonable and proportionate to achieve a legitimate end - the <a href="http://eresources.hcourt.gov.au/showCase/2013/HCA/4">test adopted by the High Court</a> to assess the validity of federal laws? </p>
<p>A charter is not a sole solution. Many nations that abuse human rights have one. But under Australian law, a charter would give greater power to the courts to ensure that common law freedoms were respected. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/gillian-triggs-how-the-fair-go-became-the-last-bulwark-for-australias-freedoms-49743">Gillian Triggs: How the 'fair go' became the last bulwark for Australia's freedoms</a>
</strong>
</em>
</p>
<hr>
<p>A judge could, for example, apply charter law to prohibit indefinite detention without trial of stateless persons, the mentally ill and asylum seekers and refugees; ensure that juveniles are not held in adult facilities; require governments to provide adequate housing for all; ensure access to medical care and social justice; protect against disproportionate counter-terrorism and surveillance laws; and protect the culture and rights of Indigenous peoples.</p>
<p>Would this mean the expansion of judicial power at the cost of parliamentary sovereignty? Would it be a carbon copy of the <a href="https://www.archives.gov/founding-docs/bill-of-rights/what-does-it-say">US Bill of Rights</a>?</p>
<p>Not if we adopt the so-called <a href="https://www.parliament.vic.gov.au/file_uploads/Victorian_Equal_Opportunity_and_Human_Rights_Commission_2016_Charter_Report_7C12GsXb.PDF">“dialogue model” of the Victorian Charter of Human Rights and Responsibilities</a>. Under this model, a Victorian court cannot invalidate a law; it can only declare that a law does not comply with charter rights. It is then up to parliament to amend the offending law as it sees fit. </p>
<p>It would be a misunderstanding of the role of a rights charter to think only of judicial power. The real significance of a charter lies in the benchmarks it creates to influence the decisions of public officials and the standards demanded by the community. A charter is a check on government power that is vital to contemporary democracy.</p>
<p>We now have a serious deficit in legal protection for human rights in Australia, rights that have been in regression for 20 years. We now need to consider a legislated charter setting out the rights we care about. </p>
<hr>
<p><em>Gillian Triggs will <a href="https://www.latrobe.edu.au/events/all/does-australia-need-a-charter-of-human-rights">take part in a debate</a> sponsored by La Trobe University on whether Australia needs a charter of human rights on Tuesday, Aug. 13, at the National Gallery of Victoria.</em></p><img src="https://counter.theconversation.com/content/121411/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gillian Triggs is the former head of the Australian Human Rights Commission and has recently been appointed Assistant High Commissioner for Protection at the United Nations. She has been affiliated with the not-for-profit groups Justice Connect, Refugee Advice and Case Work Service, Older Womens Network, Rural Australians for Refugees, and Sanctuary Australia. She has also been the recipient of Australian Research Council grants.</span></em></p>We have a serious deficit in legal protection for human rights in Australia, rights that have been in regression for 20 years. We need a legislated charter setting out the rights we care about.Gillian Triggs, Emeritus Professor, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1000082018-07-19T18:50:58Z2018-07-19T18:50:58ZWhen whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia<p>Fear is a tricky thing. It’s often hard to distinguish between what is real and perceived danger. US President Donald Trump, being more comfortable with autocrats than democratic leaders, is arguably a real danger to the world order. </p>
<p>But a former Australian spook <a href="https://www.smh.com.au/national/timor-spy-scandal-former-asis-officer-facing-prosecution-20150621-ghtp17.html">blowing the whistle on our spy agencies</a> eavesdropping on an impoverished neighbour to gain advantage in a business deal? Embarrassing for the government, absolutely. But dangerous to national security? Really?</p>
<p>The Turnbull government’s decision to <a href="http://www.abc.net.au/mediawatch/transcripts/s4865159.htm">prosecute</a> Witness K (a former Australian spy) and his lawyer Bernard Collaery, is yet another example of punishing messengers speaking truth to power. </p>
<p>Witness K blew the whistle on Australia’s eavesdropping on the newly formed Timor-Leste government during negotiations over an oil and gas treaty in 2004. Not a good look, to put it mildly. </p>
<p>It used to be that when governments were caught spying, they denied the allegations then wore the embarrassment in the public eye. Not anymore in Australia.</p>
<h2>Chilling effect of security laws</h2>
<p>This is the continuation of a pattern that started with the terror attacks on the US on Sept. 11, 2001.</p>
<p>In our recently published <a href="http://www.anthempress.com/in-the-name-of-security-secrecy-surveillance-and-journalism">book</a>, I and a number of colleagues document and track the impact that anti-terror and national security laws have had on in-depth public interest journalism in Australia and a number of other countries. We conclude it has become much harder for journalists to hold governments to account for what is being done in the name of security.</p>
<p>Australia is a potent case in point. <a href="http://www.anthempress.com/in-the-name-of-security-secrecy-surveillance-and-journalism">Since 2001,</a> 64 new or amended national security and anti-terror laws have been passed. <a href="http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/num_act/taaara2015623/">Meta-data retention laws </a>for internet service providers and telecommunication companies have made it very hard for journalists to protect confidential sources. The new <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6022">espionage and foreign interference law</a> that just passed in parliament makes it a potential crime for journalists to receive, read and store confidential, security-related documents. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/data-retention-plan-amended-for-journalists-but-is-it-enough-38896">Data retention plan amended for journalists, but is it enough?</a>
</strong>
</em>
</p>
<hr>
<p>Add to this the decision to take Witness K and his/her lawyer to court, and a pattern of a government drunk on security powers emerges.</p>
<p>In our book, we use Italian philosopher Georgio Agamben’s <a href="https://books.google.com.au/books/about/State_of_Exception.html?id=NTZBBfnmYowC&redir_esc=y">“state of exception”</a> framework to analyse this situation. Agamben argues that some nation states use a fear-driven paradigm to continuously increase their anti-terror and national security powers to a point where they reach a state of constant exception/emergency justified by a high-threat level. </p>
<p>The Turnbull government had the choice not to charge Witness K. Another high-profile whistleblower and current independent member of parliament, Andrew Wilkie, did <a href="http://www.abc.net.au/news/2018-06-28/wilkie-uses-parliamentary-privilege-to-reveal-intel-charges/9919764">not mince words</a> when he labelled the prosecution of Witness K a disgrace and said K should be given the Order of Australia for disclosing the Australian bullying of Timor-Leste. </p>
<p>Instead, K and Collaery now risk becoming “political prisoners” in Australia’s “pre-police state”, in the words of Wilkie.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/new-bill-would-make-australia-worst-in-the-free-world-for-criminalising-journalism-90840">New bill would make Australia worst in the free world for criminalising journalism</a>
</strong>
</em>
</p>
<hr>
<p>Wilkie <a href="https://www.theage.com.au/articles/2003/03/12/1047431088668.html">resigned from the Office of National Assessment</a> in the lead-up to the 2003 Iraq war to warn the Australian public there was no case for war. We now know that not only was he right, but the Iraq conflict, led by the <a href="https://archive.nytimes.com/www.nytimes.com/cfr/international/slot1_032803.html">Coalition of the Willing</a> of which Australia was a member, was the greatest foreign policy blunder since the second world war. </p>
<p>The depth of the blunder was laid bare in the UK’s <a href="https://www.gov.uk/government/publications/the-report-of-the-iraq-inquiry">Chilcot report</a>, a 2.6 million-word document that examined the British government’s reasons for going to war in Iraq (and took seven years to complete). </p>
<p>It’s symptomatic we haven’t had the equivalent of a Chilcot inquiry in Australia. It’s yet another example of how Australian political leaders have refused to explain and wear the consequences for poor decisions and embarrassing actions.</p>
<h2>Press freedom at stake</h2>
<p>A few days ago, Reporters Without Borders published its annual <a href="https://rsf.org/en/australia">Press Freedom Index (PFI)</a>. Surprisingly, Australia had improved six places from 25th in 2016 to 19th in 2017. But the general comment about Australia in the index should not give the government reason to celebrate:</p>
<blockquote>
<p>Whistleblowers who disclose information about conditions in the refugee centres or operations by the Australian Security Intelligence Organisation are now exposed to the possibility of imprisonment. A telecommunications law has opened the way to surveillance of the meta-data of journalists’ communications. In January 2018, Prime Minister Malcolm Turnbull’s government yet again proposed legislation that would jeopardise the confidentiality of journalists’ sources.</p>
</blockquote>
<p>I know for a fact that the Australian rapporteurs to the PFI will view the prosecution of Witness K extremely dimly. A government that hunts down whistleblowers is on the slippery slope towards a police state in which press freedom will be under increasing pressure. Shooting the messenger is a tool used by autocrats and is not worthy of a mature liberal democracy. </p>
<p>It will be interesting to see what ranking Australia gets in the 2018 Press Freedom Index.</p><img src="https://counter.theconversation.com/content/100008/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Johan Lidberg does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Targeting Witness K and his lawyer in the Timor-Leste bugging case shows a government increasingly hostile to the media.Johan Lidberg, Associate Professor, School of Media, Film and Journalism, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/323192014-10-02T23:59:43Z2014-10-02T23:59:43ZFairness and trust make all the difference in countering terrorism<p>Muslim communities in Australia <a href="http://www.businessinsider.com.au/australian-muslims-feel-under-siege-after-anti-terrorism-officers-shot-dead-a-man-in-melbourne-2014-9">feel under siege</a>. It is evident from media reports that they feel unfairly targeted by counter-terrorism policing. They also <a href="http://www.sbs.com.au/news/article/2014/09/26/qld-muslims-under-siege-imam">feel vilified</a> by much of the reporting of these activities.</p>
<p>Changes to counter-terrorism laws, highly publicised <a href="http://www.abc.net.au/news/2014-09-24/sydney-lawyer-says-muslim-community-feels-under-siege/5765300">raids and arrests</a> in Sydney and Melbourne of alleged supporters of Islamic State, the police <a href="http://www.canberratimes.com.au/comment/tabloid-speculation-on-numan-haider-and-islamic-state-threat-is-best-ignored-20141001-10ohp9.html">shooting of Numan Haider</a> in Melbourne and calls to “ban the burqa” have exacerbated this sense of being under attack. The <a href="https://theconversation.com/mosques-muslims-and-myths-overcoming-fear-in-our-suburbs-31822">defacing of mosques</a>, the <a href="http://www.abc.net.au/news/2014-09-26/police-reveal-rise-in-attacks-as-terror-suspect-farewelled/5772942">intimidation and abuse of Muslim women</a> in public and recent <a href="https://theconversation.com/grattan-on-friday-row-over-facial-covering-exposes-rifts-and-red-faces-32454">federal</a> and <a href="https://theconversation.com/banning-the-burqa-is-not-the-answer-to-fears-about-public-safety-31628">state</a> moves to “ban the burqa” only reinforce perceptions among Muslims that they are not seen as valued and respected members of Australian society.</p>
<p>In such a context, how do the police go about reversing or overcoming the resentment, hostility and backlash against counter-terrorism policing and laws among Muslim communities in Australia? If one accepts the argument that <a href="http://www.livingsafetogether.gov.au/pages/home.aspx">communities are a key line of defence</a> against terrorist propaganda, radicalisation and violence, then this is an important question.</p>
<p>One reason this issue matters is that community resistance and hostility to counter-terrorism policies and laws undermine the very <a href="http://www.aipm.gov.au/alumni-events/truth-in-justice-legitimacy-and-compliance-with-the-law-seminar/">legitimacy of these measures</a>. This threatens their overall effectiveness by leading Muslims to withdraw their <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1994490">consent to cooperation</a> with efforts to tackle terrorism and the influence of violent extremism.</p>
<h2>How do Muslims feel about counter-terrorism activities?</h2>
<p>This topic has been a focus of Australian Research Council-funded research we are conducting. We are exploring the impact of counter-terrorism policing and laws on Muslim communities in Australia. <a href="http://www.arc.gov.au/pdf/DP13/DP13_Listing_by_all_State_Organisation.pdf">Our research</a> has involved 14 focus groups, totalling 104 participants, and a survey of 800 Muslims living in Brisbane, Sydney and Melbourne. </p>
<p>The aim of the research has been twofold:</p>
<ul>
<li><p>to gauge perceptions among Muslims in Australia about the fairness of counter-terrorism policing and laws</p></li>
<li><p>to identify how community cooperation with counter-terrorism operations and strategies can be enhanced.</p></li>
</ul>
<p>Results from the focus groups indicate that Muslims identify strongly with being Australian. They report, though, that the “war on terror” and resulting policies and laws have had a profound impact on their sense of identity and whether they feel accepted as part of the Australian population.</p>
<p>A key finding across the focus groups and the survey is that Muslims accept legal and police responses to terrorism are needed. The issue is in their application. </p>
<p>For example, more than half of the survey sample reported they had confidence in Australia’s counter-terrorism laws. At the same time, they believed Muslims were unfairly targeted. Fairness in the application of the laws and in relation to issues of police targeting of Muslims were key themes across the data.</p>
<h2>Why are trust and procedural justice so important?</h2>
<p>What we have found is that trust in police and judgements relating to procedural justice play an important role in counter-terrorism. Procedural justice encompasses being treated with dignity and respect, being given a voice in decision-making and being treated in an unbiased manner. This also involves authorities communicating that they have people’s best interests at heart.</p>
<p><a href="http://espace.library.uq.edu.au/view/UQ:331376">Research</a> has consistently demonstrated that when people judge the police as treating them with procedural justice they are more likely to cooperate and see police actions as legitimate. Our survey results show four very important findings about the role of trust and procedural justice.</p>
<p>We found that:</p>
<ul>
<li><p>Muslims who feel more under siege (i.e. they feel targeted by the police and the media) are less trusting of police, are less likely to identify with Australia and are less willing to cooperate with police.</p></li>
<li><p>Muslims who trust police are more willing to participate in counter-terrorism education within their community and to report suspicious terror-related activity to police.</p></li>
<li><p>If Muslims feel the police observe procedural justice in counter-terrorism policing they are more likely to trust police and are less likely to feel under siege.</p></li>
<li><p>If Muslims feel there is procedural justice they are less likely to believe terrorists have valid grievances.</p></li>
</ul>
<p>It needs to be recognised that efforts by police and governments to engage Muslim communities are difficult in the current climate. However, our research indicates that procedural justice in counter-terrorism policing and trust in police can potentially buffer the hostility and resentment that Muslim communities have towards counter-terrorism policies and laws. This is an essential component of a “hearts and minds” approach to countering terrorism.</p><img src="https://counter.theconversation.com/content/32319/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adrian Cherney receives funding from the Australian Research Council</span></em></p><p class="fine-print"><em><span>Kristina Murphy receives funding from the Australian Research Council.</span></em></p>Muslim communities in Australia feel under siege. It is evident from media reports that they feel unfairly targeted by counter-terrorism policing. They also feel vilified by much of the reporting of these…Adrian Cherney, Senior Lecturer, Criminology Head of Discipline, The University of QueenslandKristina Murphy, Associate professor, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.