2010-12-01 Australian Lawyers Alliance director Greg Barns: Australian complicity in stifling Assange

By Greg Barns, barrister and director of the Australian Lawyers Alliance, 2010-12-01

Here’s a theory, and a plausible one at that. The Gillard government is getting pressure from Washington to close down Wikileaks founder Julian Assange because he is an Australian citizen. So Attorney-General Robert McClelland announces yesterday that he has asked the Australian Federal Police to see if Mr. Assange can have the book thrown at him and have his passport cancelled.

Mr. McClelland’s decision amounts to little more than posturing. This is because Mr. Assange would appear to have committed no crime under Australia’s suite of laws on disclosure of sensitive state information.

Yesterday the ABC’S Brisbane morning show presenter Madonna King exposed the weakness of McClelland’s position.

McClelland told King that the “law enforcement agencies are looking separately at the issue as to whether any Australian criminal laws have been breached and if so the appropriate course of action to take in response to that.”

Then there was this exchange:

MADONNA KING: Well what could be a criminal law that possibly could have been breached? I’m just thinking what is the crime here?

ROBERT McClelland: The crimes potentially relate to the publication of national security sensitive material, in circumstances where that is intentionally done knowing the sensitivity of it. There are other specific offenses relating to the publishing of details concerning certain places and so forth. So they’re the sort of issues that the police are looking at.

MADONNA KING: But don’t you have a big jurisdictional problem there? The leaks are coming from the United States but that’s a crime under Australian law. How do you actually do that?

ROBERT McClelland: No, you’re absolutely right. That’s why I said the prime agencies are United States agencies looking at the - that issue. It’s United States documentation so we will be focusing on what we can do to assist those. But at the same time I’ve asked the Australian Federal Police to specifically look at whether any Australian criminal laws have been breached.

Ms King is not a lawyer but she nailed the A-G perfectly in this exchange. The reality is that the Australian Federal Police can do nothing about an Australian citizen who is running a website out of Sweden which is the repository for American diplomatic cables. And Australia, unlike the UK, does not have an official secrets law. It has scattered throughout the Commonwealth statute books provisions relating to the unauthorised disclosure of information that relates to national security by employees, contractors and the like.

In any event, the current legal thinking in the UK and other common law countries is that leaking sensitive information per se is not necessarily an offence. The law respects the right to freedom of expression and simply because the leaked material embarrasses a government does not mean that a criminal offence has been committed.

The Gillard government and the Coalition also need to tread carefully in wanting to strip Mr Assange of his passport simply because they do not like the fact that he is embarrassing an ally. Many Australians, including politicians and journalists, are involved in the leaking of secret or highly sensitive documents. Remember back in 2004 when former Foreign Minister Alexander Downer and his office were accused of leaking a document on Iraq war whistleblower and now federal MP Andrew Wilkie to conservative columnist Andrew Bolt? Should Mr Downer and his staff, and Mr Bolt for that matter, have had their passports cancelled if they were all proven to have been involved in a leak of a sensitive document?

Julian Assange is an Australian citizen who does not deserve to be harassed by the Australian government, he has done nothing wrong.

This article appeared originally on ABC.net.au. Reprinted with the author's permission.