Monday, January 15, 2018

‘Creeping Stalinism’: Secrecy Law Could Imprison Whistleblowers and Journalists

The article below is lengthy but is from the Leftist "Guardian" so, as usual tells only half the story. The laws discussed are regrettable but the whole reason for a crackdown is that Leftist public servants ignore their duty to be politically impartial and so will do anything to embarrass a conservative government.  They are an Australian version of the anti-democratic "deep state" that is doing its best to hobble America's duly elected President Trump

Government whistleblowers and journalists who report on leaked information could face 20 years’ imprisonment if changes to Australia’s official secrecy laws pass parliament.

The overhauled offence provisions, introduced to the House of Representatives in December just hours after marriage equality became law, form part of the Coalition government’s broader crackdown on treason, espionage and foreign interference. If passed, the reform will increase tenfold the maximum penalties for anyone communicating information potentially harmful to the national interest, where that information is obtained via a government official without authorisation.

“This is ‘creeping Stalinism,’” said Ethicos Group specialist Howard Whitton, who has advised governments and the United Nations ethics office on whistleblower policy. “The absolute protection of principled disclosure of wrongdoing – unfettered by government – must be preserved, or Australia will become a laughing stock internationally.”

Australia’s existing official secrecy laws date back to 1914, when sections 70 and 79 of the federal Crimes Act were hurriedly introduced following the outbreak of the first world war. Describing prior prohibitions as “shamefully lax”, the attorney general (and future prime minister) Billy Hughes imposed a penalty of two years’ imprisonment on public servants who disclosed any government information without authorisation. No defences were made available.

Despite the draconian nature of such wartime provisions, that legislation has remained law in Australia over the following century with only minimal amendment. In 2008, the Rudd government asked the Australian Law Reform Commission to hold an inquiry, which resulted in modest reform proposals in its report Secrecy Laws and Open Government in Australia.

“Reform of Australia’s secrecy laws is long overdue,” said Hugh de Kretser, executive director of the Human Rights Law Centre. “After a careful and comprehensive review, the ALRC concluded that our secrecy laws were excessive and needed to be better targeted to protect legitimate government interests. Instead of acting on the ALRC’s recommendations, the Abbott government intensified our secrecy laws with the introduction of the Australian Border Force secrecy provisions and expansive Asio secrecy laws.”

The reality is public interest defences to alleged criminal acts are few and far between

That trend looks set to continue. The proposed legislation criminalises communicating or otherwise dealing with information where that information was obtained by a public servant and is “inherently harmful” or likely to harm “Australia’s interests”. The former is defined as including any information produced by a security agency, while the latter includes prejudicing Australia’s international relations “in any way” or damaging relations between the federal government and a state.

“These broad definitions, coupled with penalties of up to 20 years in prison, raise serious risks of stifling the free flow of information and leaving Australian people ignorant of important matters in the public interest,” de Kretser said. “Open government is a foundational principle of democracy. Australians have a right to know what their government does in their name. Of course, some information must remain secret to protect our security and national interests. But these proposed laws have not got the balance right.”

The new provisions are primarily directed at commonwealth officers, defined to include current and former public servants, contractors, defence force personnel and employees of businesses who provide services to the federal government. But the expansive wording of the offences means any person who comes into contact with information obtained by a commonwealth officer could fall within the legislation’s scope.

The prescribed penalty ranges from five to 15 years’ imprisonment for standard offences, stretching to 20 years for aggravated offences. Aggravating circumstances include where the relevant information was classified secret or above, the person committing the offence held a government security clearance, or the offence involved five or more records each with a security classification.

These aggravation provisions appear intentionally designed to target Edward Snowden-type leakers. The bill’s explanatory memorandum even provides an example strikingly similar to the Snowden case, a contractor who leaked extensive American intelligence information to the Guardian and other publications. “Person A is employed as an IT systems administrator at a commonwealth government intelligence agency,” the explanatory memorandum hypothesised. “Throughout his employment Person A copied 1,000 electronic files from the agency’s internal holdings to a personal hard drive … Person A publishes all 1,000 documents on the internet.”

This impetus for the new offences mirrors that of stalled attempts to reform official secrecy laws in the UK, which were described last year by Open Rights Group chief executive Jim Killock as “a full-front attack … squarely aimed at the Guardian and Edward Snowden.”

“The suggested changes take the wrong lessons from the Snowden and other revelations, and ignore the reality of the connected, global information environment in which we now live,” said Gill Phillips, director of editorial legal services at Guardian News and Media. “If public interest journalism is made harder or even criminalised, there is a real risk that whistleblowers will bypass responsible journalists altogether, and simply anonymously self-publish data leaks online, without any accountability.”

While journalists are partially protected by a defence established in the new laws, this safeguard has been derided as insufficient. Journalists prosecuted under the offence would be required to satisfy a court that their reporting met vaguely defined criteria, said the Media, Entertainment and Arts Alliance (MEAA) chief executive Paul Murphy.

“The explanatory memorandum states that journalist protections are lost if they are not engaged in what is deemed to be ‘fair and accurate reporting’ and in circumstances where it is alleged their reporting is ‘distorted,’” he said. “The protection is entirely unavailable if the subject matter is said to not be in the public interest. This is a very broad term.

“A further issue is the definition of ‘journalist’ used in the bill. The MEAA acknowledges that this definition covers journalists not regularly employed in a professional capacity and may include a person who self-publishes news or news analysis, but anchoring the definition of journalists to the dictionary meaning could well prove a mistake down the track and lead to legitimate coverage being excluded from the bill’s modest protections.”

The proposed legislation additionally provides that the public interest test will not be met where the information concerns the identify of intelligence officers, or if the journalist’s conduct could endanger public health or safety. The draft statute is also ambiguous about the legal test to be applied: whether the reporting must objectively be in the public interest or whether it is sufficient for the journalist to reasonably believe it to be so.

“It is always hard to know how this type of defence will work until you see how a judge interprets it,” said Phillips. “On the face of it, it is a good thing that thought is being given to the inclusion of a public interest defence, especially as there is not one presently available. However, the reality is that public interest defences to alleged criminal acts are few and far between. What we do know from our experience in other areas of the law is that it can be hard for journalists where the evidential burden, as I understand is being proposed here, rests on them.”

Public servant whistleblowers will not enjoy the benefit of a public interest defence. While the offences are not applicable where the information is disclosed through appropriate channels via the Public Interest Disclosure Act, the federal whistleblower protection scheme, that law has often been criticised as ineffective and is awaiting reform.

The approach taken in the proposed reform, according to Murphy, “ignores the inherent weaknesses of these laws to protect complainants and preserve their rights. These changes represent a substantial threat to whistleblowers and journalists who seek to publish critical public information. Whistleblowers in Australia get punished; it is as simple as that. Laws like these create further disincentives for people who witness wrongdoing and corruption to air their concerns.”

“This is a corruption issue, not a free speech issue,” added Whitton. “Australia is at serious risk of state capture if whistleblowers are not protected.”

Prime minister Malcolm Turnbull’s second reading speech to the House of Representatives gave little attention to this element of the amendment bill, with the term “secrecy” appearing just once.

A spokesperson for the Attorney General’s Department said: “The government is committed to striking the right balance between openness and transparency in government and the legitimate need to protect some commonwealth information.

“Protecting Australia from espionage and foreign interference relies heavily on having strong protections for our information, especially where disclosure causes harm to an essential public interest. The unauthorised disclosure or use of certain information can prejudice national security and defence, or our relationships with other countries, and as such criminal offences are necessary to deter such disclosures and punish them if they do occur.”

The Commonwealth Ombudsman’s office said: “Given that unauthorised disclosures do not receive protection for disclosers, the ombudsman encourages public officials to make their disclosures in accordance with the Public Interest Disclosure Act.”


Fixated with Finland

It may be a new year, but we’re still stuck with the old myth that Finland is an education utopia Australia must emulate.

Pasi Sahlberg from Finland, who has joined the new Gonski Institute for Education at UNSW, argued this week that his country’s school system has a lot to teach Australia. Basically, according to Sahlberg, Finland has more student play time and less standardised testing.

It is true Finland consistently outperformed Australia on all the international standardised tests in 2016, and of course we should be willing to learn lessons from the top-performing countries.

But Finland’s international test results have declined in recent years, and — as Steven Schwartz has pointed out — there are many reasons why Finland’s school system would be difficult, if not impossible, to emulate here. For example, Finland has little cultural or racial diversity, and has a much lower immigration rate than Australia.

Finnish is also a much simpler language than English, which means learning early literacy skills is relatively easier, boosting school results in later years.

Other countries like Singapore, which is the top-performing country in literacy and numeracy — not to mention collaborative problem-solving — potentially have many lessons to offer Australia as well.

Analysing high-achieving school systems is useful, but it is a fantasy to suggest Finland is the epitome of good education. This is part of a much broader myth that the Nordic countries are socialist paradises (ignoring the fact that most socialists wouldn’t be happy with Finland’s corporate tax rate of only 20%).

In any case, is more play time and less testing the key to boosting Australia’s school results?

No evidence has been presented to suggest Australian kids don’t have enough play time at school — recess and lunch are actually quite common practices in our schools, and there isn’t exactly a dearth of sports options for students.

And blaming NAPLAN for the lack of improvement in Australian schools is like blaming the thermometer for the fact that it was 42 degrees in Sydney last Sunday. NAPLAN identifies problems; it doesn’t solve them by itself.

Finally, it’s interesting that we’re told we should be like Finland and have fewer standardised tests, on the basis that Finland’s school system performs well — which, ironically, we only know because Finland performs well on international standardised tests.


Sharp drop in Australian teenagers’ use of drugs, alcohol and tobacco

The consumption of alcohol and tobacco has dropped among Australian teenagers and they are also using fewer drugs than 20 years ago, according to a new study tracking adolescent health since 1999.

The study, from Deakin University and the Murdoch Children’s Research Institute, found the number of teenagers who had consumed alcohol fell from 69% to 45% between 1999 and 2015.

Tobacco use dropped from 45% to 10% over the same period – the steepest decline of all substances – and marijuana use fell from 15% to 4%.

The study’s authors attributed the drop to stricter parental attitudes regarding alcohol, and law reforms that reduced the availability of substances.

Parental supply of alcohol dropped from 22% to 12% between 2007 and 2013, and underage purchases of alcohol fell from 12% to just 1% between 1998 and 2013.

Lead researcher Prof John Toumbourou said it was a success for Australia’s public health campaigns over the years.

“We can see that parents are taking on the advice from our national health guidelines,” Toumborou said. “It shows parents are making radical changes in their attitude to underage drinking and also how they model their own drinking behaviour.”

The study surveyed 41,328 adolescents – with an average age of 13 and a half – between 1999 and 2015 in Victoria, Western Australia and Queensland. Data was collected from anonymous surveys where students self-reported drug and alcohol use.

Of those surveyed, 82.8% were from Victoria, 10.1% from Western Australia and 7.1% from Queensland.

The study’s authors said a “normative change” in attitudes towards teen drinking might have been influenced by a 2009 change to Australia’s national health guidelines.

Between 1998 and 2007, the parental supply of alcohol rose from 15% to 22%. From then, it dropped to 12% by 2013.

“In 2009, the national health guidelines were changed to clearly say young people shouldn’t drink until 18,” Toumborou said. “They were widely promoted from that time onwards.

“By 2011, a number of states had brought in legislation making it illegal for adults to provide alcohol to young people without the parents’ permission. That was a game-changer. Parents realised they needed signed permission if they were going to host a party serving alcohol.”

Australia’s success could also send a message to other countries, Toumborou said, as it had outperformed Britain and Europe in reducing alcohol use by teenagers over the same period.

“The United States led this movement, and then Australia has been the next one,” he said. “Internationally we probably need to encourage other nations to look at this as an achievable public health target.”


How Australia’s strict laws have made smokers social outcasts

A wail from an air polluter below.  He has no real beef.  He could give up his obnoxious habit

As a smoker, I remember it well. The lights dazzled on the dance floor, Rihanna raged over the sound system and I, gin and tonic in hand, hurriedly puffed away on what was to be my last cigarette in a club.

That was Oxford St in 2010 — the night before smoking was banned in all indoor pubs and clubs in NSW.

Little did any of us know it was just the beginning of the battle to get rid of cigarettes for good as, law by law and tax by tax, Australia adopted some of the most stringent smoking regulations in the world.

By today’s standards I feel a virtual pariah. Smoking is not just considered a dirty habit, but a danger to others.

That was the position cricketers Shaun Marsh and Jackson Bird found themselves in this week, dubbed bad role models for smoking in public while celebrating the Ashes series win against England.

The fact is smokers have nowhere to hide from the growing public reproof.

Best-selling author Nikki Gemmell has called smoking “a public declaration of stupidity” and described smokers as “relics of a bygone age”.

It’s true the war on smoking in this country is led by health concerns. And 15 years ago there were some 15,000 deaths a year attributed to smoking from illnesses such as heart disease, diabetes, stroke, cancer and respiratory conditions such as asthma, emphysema and bronchitis.

But — importantly — it’s not illegal. So are the increasingly draconian laws about where you can smoke, or even what can be published about smoking, justified?

Civil Liberties Australia’s Mark Jarratt says: “The government acts like they own the atmosphere and they don’t. The coverage of smoking is almost one-sided.

“It’s the result of decades of taxpayer-funded negative conditioning which has created the impression among the wider population that one whiff of smoke and you’ll drop dead on the spot.

“There’s no middle ground for these people. What’s next? Are we going to have to sing the national anthem and do 20 push-ups before we go to work?”

For decades cricket and other sports in Australia were sponsored by tobacco companies and promoted by our top sports people and entertainers. The country’s favourite comedian when not promoting Fosters was selling cigarettes.

Planes and trains had smoking sections, and smokers were catered to as valuable patrons. The perennial of any gift shop was the souvenir ashtray.

Anyone remember Fags — the lolly? Tobacco was so much a part of day-to-day life kids were sold candy cigarettes at newsagents.

Don’t get me wrong, I’m not saying that’s a good thing. But in the context of a long history, smokers have been brought to an almost cold- turkey stop.

Today I find myself in a secret society, forced out of clubs and cafes, hiding down laneways, our numbers dwindling with each puff.

Smoking is banned in all enclosed public places and certain outdoor public areas around NSW, under the Smoke-free Environment Act 2000 and the Smoke-free Environment Regulation 2016.

Currently I can’t even smoke a cigarette outside licensed cafes and pubs legally, or within 4m of the entry of any public building.

Public pools, sporting grounds, shopping centres, public transport stops and platforms, including taxi ranks and all commercial outdoor dining areas are out of bounds. Goodbye freedom.

In a year-long City of Sydney smoke-free trial in Martin Place, four out of five people surveyed supported the trial and supported an extension of the trial to other areas of the city.

On top of that, in NSW, anything that gives publicity to, or promotes the purchase or use of tobacco can be considered a “tobacco advertisement”.

Even this article you’re reading cannot be seen to encourage smoking. It can’t reproduce old ads or show scenes of smoking unless it is in a negative context.

Even to speak of how, historically, smoking was made cool by Hollywood stars and the ever-present fug in dimly-lit jazz clubs runs the risk of glorifying it.

Yet everyone wants a piece of this “dirty habit”. According to analysis by comparison website, smokers usually pay 50 per cent more on their monthly life insurance premiums than non-smokers.

When I started smoking, more than 15 years ago, cigarette packs cost a measly $8, instead of the overtaxed $40 you pay now (the government managed to rake in $10.69 billion in tobacco excise last year alone). No one had heard of plain packaging and, if you really wanted, you could shop up a cigarette storm at duty free. Now you’re allowed to bring just a packet or two into the country.

Since then I have travelled across the globe from Samoa to Sweden, Antarctica to Abu Dhabi, Berlin to Bondi — and never felt so shunned as a smoker than here, in judgment town Australia.

Maybe it’s because we are a nation of fitness freaks, of sex and skin, that we care so much about our health that we choose to rain judgment upon those who light up.

At a New Year’s Eve party I found myself stuck in an incredibly frustrating conversation with a non-smoker who “just didn’t get it”. I sat there and listened with gritted teeth while she criticised me for my choices in life. Happy new year, me.

Last year I was regularly sprayed with a Super Soaker by a crazy yogi whose studio sat above a quiet smoking spot I would adjourn to. Today, it’s a wasteland devoid of smokers.

Now, I’m all for quitting and getting off the cigs, but in my own time and when I want to.

According to the 2016 National Drug Strategy Household Survey, daily smoking rates for Australians aged 18 and over dropped from 20 per cent in 2001 to 13 per cent in 2016. People who have quit smoking outnumber people who currently smoke: in 2016, 61 per cent of people who had ever smoked had quit. The last national health survey in 2014-15 found 2.6 million adults (14.5 per cent) smoked daily, down from almost 25 per cent in 1995.

The writing is on the wall for cigarettes as we know them, but it won’t mean the end of bad habits.

A national survey of adolescent drug use in the US found while cigarette smoking had dropped, marijuana use had risen.

One of the world’s biggest tobacco companies, Philip Morris, has already announced plans to “quit” for good, and hopes to stop production of cigarettes, in place of vapes and heated tobacco products, by 2020 in a bid for a “smoke free” Australia.

“I hope by 2020 we stop selling conventional cigarettes if not completely, then handing them over to someone else to worry about,” Paul Riley, president of Philip Morris Japan, told me last month. “If we can go hard enough, we’ll be close by the end of 2020 not to have to sell the conventional product (cigarettes).

“The reality is you can’t get away from the fact the WHO (World Health Organisation) itself says that even if they continue with the same methods they have today, like plain packaging, higher taxes, the number of people smoking in 20 years’ time is not going to be too much different from today.”

I try to hide my smoking as best I can these days. I’d rather a cigarette in silence than socially. It’s become my own secret shame in a weird way. It seems I might be fighting a losing battle.


Posted by John J. Ray (M.A.; Ph.D.).    For a daily critique of Leftist activities,  see DISSECTING LEFTISM.  To keep up with attacks on free speech see Tongue Tied. Also, don't forget your daily roundup  of pro-environment but anti-Greenie  news and commentary at GREENIE WATCH .  Email me  here

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