The Australian Federal Police is relying on an old and flawed law to reach into some disturbing new places. From the NBN raids to investigating a doctor who spoke out about asylum seeker care, it's looking decidedly anti-democratic, writes Michael Bradley.
The AFP's powers are limited. It can only investigate crimes under Commonwealth laws, and there aren't that many of those. The vast majority of crime is a state law matter. For the NBN and Khazaei investigations, the AFP called upon section 70(1) of the Commonwealth Crimes Act, which has been on the statute books since 1914 and is extraordinarily wide.
When a law is on the books for a long time and is breached constantly but rarely prosecuted, we know one thing about it - it's a stupid law.
There have been many calls for the repeal of section 70, including from the Law Reform Commission, but neither major party has bothered dealing with it. Of course there's no practical problem with leaving an excessively wide law on the books for years, provided the cops don't one day start using it as a means of sticking their beaks into places we really shouldn't want them to go...
In the NBN and Khazaei cases, the AFP could only proceed if it reasonably suspected that a Commonwealth officer leaked the material that got into the media.
Seriously, what the hell? As I've said, neither case involves national security or anything remotely approaching a state secret. In the Khazaei case, what was leaked was the information which let us know what the Government was desperately keen we not know: that Khazaei's death was caused by us. The only person who might care about the privacy of his medical records was him, and he's dead.
As for the NBN case, you might be wondering how section 70 can even apply. Only a "Commonwealth officer" can breach section 70. But NBN Co is an ordinary trading company under the Corporations Act, and its own legislation specifically provides that it is not a public authority. So, how can an NBN employee be a Commonwealth officer?
Here's where the stupidity of section 70's existence goes into overdrive. The Crimes Act defines "Commonwealth officer" to include not just public servants but anyone who "performs services for or on behalf of the Commonwealth". That technically picks up every person who works for a business which provides any services to any Federal Government entity - even law firms, the horror. It comfortably brings NBN Co's employees within section 70's extended reach.
The significance of these stories is manifold. The political dimension is that the Government continues to demonstrate that it is anything but liberal in its attitude to the public's right to know; it is very focused on preventing the truth and punishing those who reveal it.
The governmental aspect is that the AFP now appears hopelessly politicised and compromised by its own actions; it is actively pursuing people who have done nothing other than possibly break a bullshit law which should have been repealed decades ago and which now appears to be being selectively exploited for entirely political ends.
It gives the impression that the AFP has become a willing tool of the government of the day, and we should not expect this to change if the ALP wins the election. It's just as bad.
The societal issue is profound. A properly functioning democracy is able to immediately identify when a long-redundant law is disinterred by authorities who wish to use it for anti-democratic ends. Our democracy is rapidly losing this ability. The consequence today is that a young man's death and the airing of a government's incompetence are resulting only in the shooting of the messengers. You don't need much imagination to see where this is heading.
The AFP's powers are limited. It can only investigate crimes under Commonwealth laws, and there aren't that many of those. The vast majority of crime is a state law matter. For the NBN and Khazaei investigations, the AFP called upon section 70(1) of the Commonwealth Crimes Act, which has been on the statute books since 1914 and is extraordinarily wide.
When a law is on the books for a long time and is breached constantly but rarely prosecuted, we know one thing about it - it's a stupid law.
There have been many calls for the repeal of section 70, including from the Law Reform Commission, but neither major party has bothered dealing with it. Of course there's no practical problem with leaving an excessively wide law on the books for years, provided the cops don't one day start using it as a means of sticking their beaks into places we really shouldn't want them to go...
In the NBN and Khazaei cases, the AFP could only proceed if it reasonably suspected that a Commonwealth officer leaked the material that got into the media.
Seriously, what the hell? As I've said, neither case involves national security or anything remotely approaching a state secret. In the Khazaei case, what was leaked was the information which let us know what the Government was desperately keen we not know: that Khazaei's death was caused by us. The only person who might care about the privacy of his medical records was him, and he's dead.
As for the NBN case, you might be wondering how section 70 can even apply. Only a "Commonwealth officer" can breach section 70. But NBN Co is an ordinary trading company under the Corporations Act, and its own legislation specifically provides that it is not a public authority. So, how can an NBN employee be a Commonwealth officer?
Here's where the stupidity of section 70's existence goes into overdrive. The Crimes Act defines "Commonwealth officer" to include not just public servants but anyone who "performs services for or on behalf of the Commonwealth". That technically picks up every person who works for a business which provides any services to any Federal Government entity - even law firms, the horror. It comfortably brings NBN Co's employees within section 70's extended reach.
The significance of these stories is manifold. The political dimension is that the Government continues to demonstrate that it is anything but liberal in its attitude to the public's right to know; it is very focused on preventing the truth and punishing those who reveal it.
The governmental aspect is that the AFP now appears hopelessly politicised and compromised by its own actions; it is actively pursuing people who have done nothing other than possibly break a bullshit law which should have been repealed decades ago and which now appears to be being selectively exploited for entirely political ends.
It gives the impression that the AFP has become a willing tool of the government of the day, and we should not expect this to change if the ALP wins the election. It's just as bad.
The societal issue is profound. A properly functioning democracy is able to immediately identify when a long-redundant law is disinterred by authorities who wish to use it for anti-democratic ends. Our democracy is rapidly losing this ability. The consequence today is that a young man's death and the airing of a government's incompetence are resulting only in the shooting of the messengers. You don't need much imagination to see where this is heading.
No comments:
Post a Comment