27 Mar 2012

New Laws Target Wikileaks

By Matthew da Silva
As Julian Assange tilts at the Senate, new laws have been passed that will make it harder for organisations like Wikileaks to operate legally - and there are more to come, writes Matthew da Silva

The Labor Government is tightening up Australian law in areas that will have a direct impact on organisations such as WikiLeaks. Only the Greens are challenging the new bills in parliament, and they are receiving scant media attention.

There's a new extradition law that will make it easier for foreign governments to request extradition of Australians and a new spying law that broadens ASIO's reach, which has been dubbed the WikiLeaks Amendment.

And finally there's a bill that will make it easier to retain digital data for Australians, and easier also to pass that information to overseas law enforcement agencies. Senator Scott Ludlam, the Greens' spokesperson for communications, told New Matilda that the Attorney-General wants all digital records for all people for all time to be trapped and recorded so that intelligence agencies, law enforcement agencies, and welfare agencies can mine the data.

The new extradition law contains elements that make it easier for foreign governments to request that people be extradited from Australia. The new federal law also enables people to be prosecuted in Australia for alleged crimes overseas.

The law was foreshadowed in November last year by Jeffrey Bleich, the US Ambassador to Australia, who told reporter Anne Davies of the Sydney Morning Herald when she asked him about WikiLeaks that, "We will have to see whether there is an offence against any person, and Australia will have to evaluate its own extradition obligations." The new law passed last month.

Adam Fletcher of the Castan Centre for Human Rights Law at Monash University expressed surprise in a recent blog post that the law's passage received no media coverage. It was passed "in the aftermath of the infamous Labor leadership showdown and when all eyes were on the Carr for Canberra drama", Fletcher wrote.

The law would enable the government to prosecute WikiLeaks' Julian Assange if he was living in Australia and had been charged with a crime in the US. Fletcher told me in a telephone interview that whatever Assange is accused of overseas must also be a criminal offence in Australia for any prosecution to take place here under the new law.

On 2 December 2010 Julia Gillard claimed that what Assange had done by releasing classified documents was "illegal" under Australia law, but this assertion was contradicted on 16 December 2010 by the Australian Federal Police. Two days later US vice president Joe Biden labelled Assange a "high-tech terrorist".

It is now known that a secret grand jury has been constituted in Alexandria, Virginia, for the purpose of prosecuting Assange.

Fletcher agrees that the new law also contains elements that make it easier for foreign governments to extradite Australians. "Before this Bill, extradition had to be refused if the alleged crime was really in the nature of a political protest," wrote Fletcher. Alleged terrorist offences and "any offence prescribed by [Australian] regulations" are among those that will no longer be considered political.

"The way [the Australian government explains] it, they're party to a large number of treaties with other countries on extradition, and they all get negotiated separately and they have different terms," Fletcher told New Matilda.

"What happens sometimes is that countries will request that certain offences that they're particularly concerned about be excluded from, for example, a list of political offences, which would normally be grounds for Australia to refuse extradition.

"What [the Australian government] said is, 'We will just have a list in the regulations which will be amended from time to time when we sign a new treaty. And that's how we'll determine which offences are political and which aren't'."

Fletcher argued on his blog that such a regime erodes transparency. "Regulations get tabled in parliament and they could be scrutinised, in theory, but in practice they don't get anywhere near the same level of scrutiny as bills, which become acts," he told New Matilda.

The Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 is not the only law relevant to WikiLeaks that has been pushed through under the radar in recent times. Witness the Intelligence Services Legislation Amendment Act 2011, which was rushed through parliament in June 2011 and significantly broadens ASIO's remit.

Patrick Emerton, a senior lecturer in the Faculty of Law at Monash University, told New Matilda the new law both changes the definition of foreign intelligence and the grounds on which spying in pursuit of foreign intelligence can take place.

"Foreign intelligence, prior to the bill, had been confined to spying in relation to foreign governments and entities that they control, or foreign political organisations," says Emerton.

"It's now been redefined to refer to people or organisations outside Australia. So it's much broader. That can make it interesting to ask, for example, [which] might be people or organisations [ASIO wants to investigate] outside Australia who are not foreign governments or entities controlled by foreign governments, or foreign political organisations? And it's natural to think of a whole lot of private or semi-private organisations [that] come to mind."

A Castan Centre submission to a Senate inquiry last year suggested that WikiLeaks could be a target.

"[Spying] used to be related to the defence of the Commonwealth of Australia or the conduct of the Commonwealth's international affairs," says Emerton. "Under the new definition the grounds become Australia's national security, Australia's foreign relations, or Australia's national economic wellbeing.

He said that whereas issues to do with WikiLeaks don't necessarily affect the conduct of the Commonwealth's international affairs, they could appear to have an effect on Australia's foreign relations.

The new law wouldn't permit ASIO to spy on Julian Assange in London.

"But suppose he sent an email or a letter to a friend or a family member in Australia which was then accessed through a computer in Australia, or through a letterbox or a delivery service in Australia," says Emerton. "Then ASIO could, conceivably, seek to spy on that."

"The main line of criticism I would run is that the department in its submissions referred on multiple occasions to 'gaps'," he continutes. "'There are gaps in ASIO's capabilities and these amendments will close those gaps.' I guess my response to that is it's part of a liberal democracy that there are gaps in the capabilities of spies. That's the difference between Australia and East Germany."

Lastly, there is the Cybercrime Legislation Amendment Bill, which affects how ISPs can be made to release internet traffic data. It would also make this information available to overseas law enforcement agencies.

Prime Minister Julia Gillard assumed responsibility for the government's cyber security policy last year, little less than a month after US President Barack Obama's two-day Australian visit.

Senator Scott Ludlam doesn't think that the bill was written with WikiLeaks exclusively in mind but says they are "collateral".

"I think it is part of a longer story of the government assigning agencies inappropriate degrees of power and latitude to spy on civil society organisations," says Ludlam. "WikiLeaks, obviously, has assumed a really central role in the last couple of years informing those organisations around the world. So they have become a target."

Ludlam is concerned about the fact that foreign jurisdictions can have different standards of evidence gathering to Australia, and also different standards for prosecuting different kinds of crimes.

He notes that, in addition to telephone intercepts and stored communications, which require a warrant and for which there are thresholds based on sentencing severity, there is "virtually no threshold" for telecommunications data. This can include IP addresses, latitude and longitudes, times and dates, and credit card records.

"They issue 250,000 of those every year to various agencies," said Ludlam.

"That kind of data that's being hoovered up by Australian agencies and collected together can then be shopped across to foreign law enforcement agencies according to completely different thresholds."

"What I think is occurring, not just here but overseas, is these huge volumes and categories of data are becoming available that never existed before and various governments and agencies are just figuring it's entirely their right to snoop on it because they can."

If passed, the Cybercrime Legislation Amendment Bill will lower thresholds, enable access to more information and allow overseas agencies to access that information.

"And you won't necessarily know," says Ludlam. "You might be the target of a prosecution but you may not. The thing with the telecommunications warrant is that you may just have an association with somebody who is suspected of such an offense, but you may have done nothing wrong whatsoever".

"But by virtue of communicating with these people, whoever [law enforcement] may [have] targeted at any given time, that's all your material being scooped up as well."

"The Government is up to a lot of dodgy things besides persecution of WikiLeaks," said Ludlam, who adds he doesn't have evidence the laws were drafted with this intention in mind. But, he continues: "I think all three of the laws could be used in malign ways to harm the work of WikiLeaks, in different ways."

The WikiLeaks Law and the extradition law passed through parliament with the support of both Labor and the Coalition. The Cybercrime Bill likewise quickly passed the Lower House last year. In the Senate, the Greens are questioning the bill — but there appears to be overwhelming support from both major parties for tougher laws that give governments more power to monitor organisations that are socially innovative.

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Posted Tuesday, March 27, 2012 - 13:23

While I am an admirer of Assange, I am aware that he claims to be a libertarian.

Would appreciate some clarification here; is Julian Assange the "I'm alright, screw everyone else" type libertarian? Or, the freedom of thought, expression for all types, progressive libertarian - even the not so wealthy or privileged?

Being a member of the latter I tend to being apply a great deal of critique to anyone who claims to be a libertarian.

As for Assange's tilt at the senate, if he is indeed a progressive libertarian then his abilities are urgently needed.

Posted Tuesday, March 27, 2012 - 13:30

This is just another example of Australia cowtowing to the Yanks. A shut the gate after....... type scenario.
The only people who think Assange is a terrorist are paranoid Governments that cover the truth.
I hope he makes the senate, in the hope that we will, at least, have some truths released....

Posted Tuesday, March 27, 2012 - 13:45

This is the same Australia which critices Iran? Ghadaffi? North Korea? Apartheid South Africa?

When was the last time anyone heard the joke about Australia claiming to be a free country?

Dr Dog
Posted Tuesday, March 27, 2012 - 14:12

That one has been around since vaudville Rockjaw.

How telling that the response to the open provision of information is for our government to become even more secretive and distrusting.

In order to protect themselves from the consequences of their decisions our government seems prepared to make the law contingent on the whim of the government of the day.

Apparently it is an act of terrorism to attack the Labor Party. Christ knows what appalling uses Abbott would have for this legislation.

Posted Tuesday, March 27, 2012 - 15:49

Is there no limit to the perfidy of Gillard and Co.
Gawd, how low can she go in licking the boots of The Dictator Obama. This same Obama who by telephone calls to a President, makes sure that a journalist who told the truth about one of Obama's Killer Drone attacks, which killed a large number of women and children, NOT terrorists, remains in prison accused by Obama of being a co-hort of Osama bin Laden.
An Obama who is killing hundreds of people weekly, mainly innocent people, with his Killer Drones, because he wants to appear 'strong' in front of a home electorate being told he is weak by the Republican contenders.
One does not want the Republicans back, but Obama is a very weak and nasty alternative. I cringe now whenever I hear his booming voice bellowing out of a radio or TV, the Voice of Authority, the Voice of Corruption.
Gillard is acting as a proxy to one of the worst President's America has ever had. A man who has no moral or ethical compass whatsoever. Just as Gillard does not.
Gillard totally debased herself in front of the US Congress, and shamed all Australians.
She again debased herself in Australia when her Master came calling. Now we know part of just how badly she has shamed us all. We have more to learn.
I hate Tony Abbott and everything he supposedly stands for in the Liberal Party, and I hate his carping and negativity, but that woman who is supposedly our PM is very definitely NOT a good person, and by her own actions or inactions, shames, disgusts and threatens us day by day.
Do we always have to have Governments who so happily lick American rings, and do their bidding, no matter how atrocious the measure.
One could hope that Assange does get to be Senator in Australia, but he will have the whole weight of Obama, the US Congress, the Gillard Government, Abbott and his mob of thugs working to make sure he does not get there, but in fact ends up in a Military Prison in the USA alongside the other maltreated political prisoner.
So much for the Great Ole USA (which it never was!), it is now very much Rogue Nation, doing the work of the Devil, assisted by Gillard and Co. and all other forces of oppression in the world.
Poor Fellow, My Country, My World.

Posted Tuesday, March 27, 2012 - 16:54

The scary thing is that every blogger on this site who expresses any dissenting views, or, any views which are "of interest" to Asio could cause this site to be shut down according to the new security laws enacted over the past decade.

The New Matilda domain would then be "arrested" and taken off line with no due process or prior warning, and, if that is not enough, each blogger who committed "offending" opinions to the public via this forum will be at risk of being detained without trial or representation and every blogger could be sent to any one of a number of foreign destinations at the insistance of a foreign government without so much as even ever seeing the inside of an Australian court.

Anyone who studied the apartheid era and the evolution of the associated security laws, the actions and counter actions of the various security organisations and their enemies, the anti-apartheid movements, will tell you that the similarities of that regime's laws to Australia's security legislation is absolutely startling.

The similarity ends when one compares the degree with which our laws transgress basic human rights which is terrifying in that the Australian security legislation leaves us all much less protected in law than any anti-apartheid activist ever was.

Under Australian legislation the successful application by the anti-apartheid movements, under the habeas corpus writ, to demand from the state that they present the prisoner, Steve Biko, before a South African court, would never succeed in Australia. Steve Biko would simply have disappeared without trace nor accountability and there is nothing any anti-apartheid structure would have been able to do to legally protect the rights of that man.

From Apartheid South Africa's first apartheid laws introduced by the British Crown after the Boer War, through to the formation of the African National Congress liberation movement, the trial of Nelson Mandela and the death of Steve Biko in Police detention, a student of the apartheid regime and of the apartheid era will tell you that Australia's security legislation is far, far worse than any laws which the apartheid regime ever managed to dream up to protect their own police state.

Today every Australian citizen is a David Hicks, a Julian Assange, a Nelson Mandela and potential Steve Biko.

Instead of dealing with these critical issues we will all sit back and wring our hands fretting about who won the Queensland elections.

Australia is on the road to hell.

David Grayling
Posted Tuesday, March 27, 2012 - 19:24

I'm reminded of the Eureka Stockade when the people stood up to authority. Perhaps that time is coming again!

Julia Gillard is selling our country to the U.S. bit by bit. For nothing! U.S. troops in Darwin is just the beginning.

The stifling of dissent via militaristic police is next as is the sending of Australian citizens to any country that demands they be extradited.

When are Australian citizens going to stand up to their Government and tell them that we don't want to be involved in America's wars, that we want to be neutral, that we want peace, that we want real democracy where politicians represent us not themselves or their parties?

If we don't fight for our freedom, soon we will have none!


Posted Wednesday, March 28, 2012 - 09:20

Well said David Grayling.

If my understanding of this report is correct then pro-war, pro-coal, pro-gas, pro-Zionist Gillard Labor in cahoots with the similarly-perverted Coalition and nuclear terrorist foreign governments (the US, UK, Apartheid Israel) has gravely attacked the human rights of all Australians and in particular of people such Australian hero Julian Assange.

Julian Assange's only protection from extradition may possibly lie in the danger to his life as evidenced by:

1. threats against his life from US public figures including demands that that he be extra-judicially executed as a "terrorist" by the US Government;

2. the reality of judicial death sentences in the US . Thus International Business Times report, 27 March 2012 (see: http://www.ibtimes.com/articles/319973/20120327/executions-middle-east-g... ) : "The US was the only western country to have carried out judicial executions last year and the 43 executions in the country ranked it fifth in the world in capital punishment, behind China, Iran, Saudi Arabia and Iraq, Amnesty International said Monday." );

3. the 700,000 people who die from US-imposed deprivation each year in the overseas American Empire - extra-judicial death sentences carried out by the US Government each year around the world with about half the victims being children (see "Hey, hey, USA, how many kids did you kill today? Answer: 1,000": http://bellaciao.org/en/spip.php?article18750 );

4. violent extra-judicial violent murders by the US Government since 9/11 total 3.2 million, the breakdown being 1.5 million (Iraq; see US Just Foreign Policy: http://www.justforeignpolicy.org/ ), 1.4 million (Afghanistan), 0.2 million (Somalia) and 0.1 million (Libya) (see "Muslim Holocaust, Muslim Genocide": https://sites.google.com/site/muslimholocaustmuslimgenocide/ ), this amounting to about 300,000 extra-judicial killings each year by the war criminal US Government;

5. There were 14,748 murders in the United States in 2010 this giving a homicide rate of about 48 deaths per million, one of the highest in the world e.g. compare this with 5 (Norway), 9 (Ireland and Germany), 10 (Netherlands), 14 (UK), 16 (France and Scotland) and 19 (Canada). Some of these extra-judicial killings are evidently beyond the reach of the law e.g. the murder of an unarmed African-American kid Trayvon Martin in Orlando, Florida by an armed vigilante who reportedly merely "felt threatened" (see: http://www.newsmax.com/US/Florida-killing-vigilante-protest/2012/03/19/i...).

6. The US under Obama now extra-judically murders it own citizens (e.g. the killing of Awlaki in the Yemen: http://www.nytimes.com/2011/10/01/world/middleeast/anwar-al-awlaki-is-ki... ).

7. The US is the richest country on earth but an estimated 1 million Americans die preventable deaths each year due to gross fiscal perversion whereby trillions of dollars are spent on the military, wars and killing people abroad rather than on keeping Americans alive at home. The traitorous Neocon American and Zionist Imperialist (NAZI) Establishment 1% responsible for this passive mass murder of 1 million Americans each year should be exposed and sidelined by the long-suffering 99% of ordinary Americans (see "1 million Americans die preventably each year under racist Neocon & Zionist rule
" : http://bellaciao.org/en/spip.php?article21696 ). The NAZIs kill 1 million Amercians ech year - what would the neocons and Zionists do to Julian Assange if they got their hands on him c/- the Gillard Labor Government?

Decent Australians and especially decent Labor voters have been utterly betrayed by the pro-Zionist, US lackey Gillard Labor Government and will vote 1 Green and put Labor last until it reverts to decent values including the fundamental requirement of all Australian Governments which is to protect Australian citizens against foreigners and their traitorous Australian agents, such as the pro-US neocons and racist Zionists.

Help save Australians, the American 99% and the World from the racist, genocidal, Neocon American and Zionist Imperialists (NAZIs) and their collaborators who should be sidelined from public life as have been like racists such as the Nazis, neo-Nazis, Apartheiders and KKK.

Peace is the only way but Silence kills and Silence is complicity.

Posted Wednesday, March 28, 2012 - 12:46

Well said, Rockjaw, David Grayling and Dr. Polya.
It is so easy to forget all the terrible Laws that have been passed by the Howard, KRudd and Gillard Governments in the name of National Security.
Rockjaw, you, are correct, we could be 'disappeared' at any time. New Matilda could be blocked for just about anything that Gillard did not like about it. She grovels to Murdoch, as being the Voice of Her Master, but poor little NM and other such publications must quiver in terror.
Has anyone looked at the Global Mail yet? I do no think they have anything to worry about from the Establishment, they are definitely not even attempting to rock any boats. Absolutely nothing controversial there, ever. I am very disappointed.

Posted Wednesday, March 28, 2012 - 16:06

Dr Polya,

If I were your legal counsel I would strongly recommend that you take a different stance in public.

These are dangerous times.

There is diminished and shrinking tolerance for people with your views, and the security legislation was intended, at least in part, to address the threat to the existing political order which opinions such as yours obviously present.

I salute your courage, but I would make certain you had plans in place for the possibility that, one dark night, you might disappear without trace, without due process and without a warrant.

David Grayling
Posted Thursday, March 29, 2012 - 11:54

Julia, not content with giving Darwin to the Yanks, is now considering giving the Cocos Islands to them to use as a drone and surveillance base.

Why does Julia continue to do things in bits and pieces. Why doesn't she give all of Australia to the Yanks and be done with it? Then the Chinese wouldn't have to worry about whose side we were on (which must be a constant worry to them as they pay billions to us for our minerals, etc).

Julia, supported by her gang of mindless political hacks, wouldn't know if she was Arthur or Martha. Her grasp of world affairs is less than that of my dog who seems to go crazy whenever he hears an American accent!

Why are Australian politicians so dumb, so naive, so craven? Can't they see where our pathetic servility to the U.S. is leading us?

We don't really want to be caught in the middle of a war between America and China, do we? Surely, given where we live, we should be both neutral and peaceful like the New Zealanders.

Contact your local member today and tell him or her that Julia sucks, that she is on the wrong track, that power has gone to her head and fried her brains. Tell your member that Smith is a dolt, a yes-man, and Bob, the Newest American Sycophant, is not worth two-bob!

Stand up for Australia today and demand that we become neutral and independent!


Dr Dog
Posted Thursday, March 29, 2012 - 11:57

Let's face it, the Asiotics (is that the right word for people from ASIO?) are unlikely to actually kill me no matter what I write. They would be more likely to 'render' me, which given my fat content is probably not such a bad idea and could actually effect world oil prices.

After a decade or so appearing in the reality show 'Guantanemo Baywatch' I would finally be released, despite the best efforts of my own government. Then comes the trophy wife and a fat cheque from Allen and Unwin. Awesome, I dare them.

Doc, all jokes aside, get a personal alarm.

Posted Thursday, March 29, 2012 - 12:58

Dr Dog, the point is not whether the "Asiotics" - love the term - would do it, but that they have been granted the power and authority to do it is what should be of great concern to everyone.

If "they" would not do it, why do they need the tools to do it?

Posted Thursday, March 29, 2012 - 13:23

Australian intelligence has had some horrendous failures this century due to its evident commitment to the Zionist-beholden, racist, genocidal, nuclear terrorist US to the serious detriment of Australian security - they are the last people to pass judgment on free speech in Australia or extradition of Julian Assange to the grossly human rights-violating US.

Thus Australian intelligence evidently gave utterly incorrect advice to the Howard Government about Iraqi Weapons of Mass Destruction, advice contrary to that of Lt Col. Andrew Wilkie and UN weapons inspectors and which led to Australia's illegal and war criminal involvement in the Iraq Genocide (2.7 million post-invasion violent deaths and war-related avoidable deaths from deprivation: https://sites.google.com/site/iraqiholocaustiraqigenocide/ ) that has cost Australia billions of dollars, trashed our international reputation and generated 5-6 million of the circa 20 million Muslim refugees).

Further, Australian intelligence presumably approved the Australian Labor Government deal costing $349 million that put Apartheid Israel at the heart of Australian defence command and control at a time when Apartheid Israeli terrorists had been involved in large-scale forging of Australian passports and (still continuing) attempted murder and kidnapping of Australians (for advice the Australian Government ignores see: "50 Ways Racist Zionists (RZs) & Israeli State Terrorism (IST) threaten Australia & YOUR country too", Bellaciao, 14 March 2010: http://bellaciao.org/en/spip.php?article19618 ).

This appalling situation was not always so.

Thus in 1944 John Curtin accepted expert and patriotic advice from Australian Intelligence and vetoed a plan for a Jewish-only colonization of NW Australia (read the book "An Unpromised Land" by Leon Gettler; for review see: https://sites.google.com/site/bookreviewsbydrgideonpolya/gettler-leon )..

Further, in 1991 top Australian Intelligence officer Captain Eric Nave (who was involved in the very beginnings of ASIO and was Head of Section C, responsible for the policies and standards of ASIO’s personal vetting) published a book with UK intelligence writer James Rusbridger entitled "Betrayal at Pearl Harbor: How Churchill lured Roosevelt into World War II", Summit, New York; for details and context see Chapter 15, "Jane Austen and the Black Hole of British History": http://janeaustenand.blogspot.com.au/2012/03/jane-austen-and-black-hole-... ). I am expertly informed that most Japanese scholars believe that the UK and US had advance knowledge of the Pearl Harbor attack.

Peace is the only way but Silence kills and Silence is complicity.

Dr Dog
Posted Thursday, March 29, 2012 - 13:42

Quite right Rockjaw, and if they have it they will use it, just like guns, bombs, tasers ad infinitum.

Wonky Funkfart
Posted Saturday, March 31, 2012 - 10:39

"...the Attorney-General wants all digital records for all people for all time to be trapped and recorded so that intelligence agencies, law enforcement agencies, and welfare agencies can mine the data."

This is straight out Stalinist! Love it how it all goes down without any corporate media coverage.

"Fascism should be called corporatism, as it the merger of state and corporate power." Benito Mussolini

To all those here paranoid about being arrested, that would only apply to the likes of Assange who actually get heard. Unfortunately NM comrades, I see the same people post political views here, and we are preaching to the converted.

Those out there in nitwit land are too ensnared by the system to consider our views as representative of nothing but the lunatic 'Left' fringe.

But it not better to die on your feet than live on your knees? I recall one Peter Garret saying such in song. He's an example of learning to love 'Big Brother' and know that 2 + 2 = 5

Posted Friday, April 13, 2012 - 12:07

Thanks Matthew Da Silva, Senator Ludlum, and Patrick Emerton. Our governments and security services don't need more powers to spy on our mail, and they do have more important things to spend that money on. This Cybercrime Legislation Amendment Bill is a continuation of the paranoid assaults of Governor General Philip Ruddock (and all who voted for his policy) destroying legal rights of people incarcerated on (later dismissed) terror charges.
When we trade some of our liberty for security, we take losses in both. The decade-old War On Terror is as fundamentally flawed as the decades-old War On Drugs. Instead of accepting paranoia and repression for a lower incidence of "terrorism" crime, how about a different strategy? Lead on the AUS Greens.