In 1776 Thomas Paine wrote: "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other".
Australians are the fortunate inheritors of this legal tradition. Founded on the basic principles of the rule of law, our legal system slowly evolved over hundreds of years in England — predominantly as a reaction to the absolute power of monarchs. And right at the heart of rule of law is the rejection of arbitrary power.
Yet last week Attorney-General Senator George Brandis made a bad law worse by giving himself subjective power to determine whether individual journalists accused of breaching a new criminal law which restricts free speech will face prosecution.
Section 35P of the National Security Legislation Amendment Act (No. 1) 2014 establishes the criminal offence of "unauthorised disclosure of information". Disclosures attracting criminal liability are those that relate to any "special intelligence operation" conducted by the Australian Security Intelligence Organisation. The penalty for breaching this new law is five years' imprisonment.
Section 35P is a clear and unjustified limitation on the human right to freedom of speech. It punishes anyone who publishes information about SIOs. There is a significant level of ambiguity around what ASIO activities can be granted SIO status and once an SIO has been granted it remains in place forever.
Recently, the debate has centred on the impact that this provision is likely to have on journalists. The concern is that section 35P puts this particular category of people at a higher level of risk than many others due to the nature of their work. There is no doubt this is true. Reporting on the activities of our national security agencies has just become a far more hazardous pursuit.
Many have pointed out this flaw in the legislation. Foreign affairs editor at this paper, Greg Sheridan, is scathing: "Section 35P of the National Security Legislation Amendment Bill is a terrible piece of legislation that fundamentally alters the balance of power between the media and the government. In doing this, it seriously weakens our democracy and will ultimately weaken, in quite practical ways, our security."
Of course, journalists are not the only ones affected by the legislation. Anyone can fall foul of section 35P. But that has been the overwhelming focus of the current discussion. Senator Brandis is clearly feeling the pressure and has grasped at a solution.
Last week, the attorney-general acknowledged the concern that section 35P could be used to gag journalists and announced that "no such prosecution could occur without the consent of the attorney-general of the day."
Senator Brandis' solution to the section 35P problem is quite explicitly political. The attorney-general is seeking to transform a legal decision into a political one. The rationale is that prosecuting journalists is an unpopular proposition in liberal democracies like ours. So if an elected politician has to sign off on the prosecution it is unlikely ever to occur.
This is quite an extraordinary decision by the attorney-general. It is a deeply flawed solution to a very dangerous law. It infuses an already hopelessly vague law with further uncertainty.
Discretion lies at the heart of Senator Brandis' resolution. He has established a system whereby attorneys-general must exercise their own personal judgment in cases where journalists would be accused of breaking the law. This is an unambiguous challenge to the rule of law.
The English jurist AV Dicey, in his work The Law of the Constitution, directly contrasts the rule of law with discretionary power. Giving arbitrary decision-making power to an individual allows for personal biases to dictate legal outcomes. Discretion undermines the certainty and predictability of a legal system built on the rule of law, and it undermines the idea that everyone is equal before the law.
There are also a number of practical problems. An attorney-general reviewing a potential prosecution under section 35P will have a number of political issues to consider. Particular problems arise in cases where a journalist has uncovered ASIO wrongdoing. The political calculation might lead an attorney-general to agree to proceed with a prosecution in the hope of discrediting the journalist and escaping the potentially more significant fallout from such disclosure.
In a 2007 paper on prosecutorial discretion, Nathan Piwowarski pointed out that electoral accountability often translates poorly into accountability for discrete decisions. This is because elected officials make countless decisions, only some of which capture the public's attention, and the public will reward populist decisions as opposed to those that are legally sound.
Section 35P erodes liberal democratic principles. But Senator Brandis' proposed solution is a cure worse than the disease. This is a problem of the parliament's making, and it's up to parliament to find a solution. The most elegant answer is obvious — repeal section 35P.
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