How Dutton’s ‘exclusion orders’ can be weaponised against journalists and whistleblowers

The Coalition and ALP supported “exclusion orders” law is now before the Senate. It gives Minister for Home Affairs Peter Dutton unprecedented powers over the lives of individuals who the government says have been fighting against Western interests in countries like Syria and Iraq in recent years.

But one clause in the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 appears so broadly drafted that it could be used to prevent whistleblowers, journalists and others who reveal the secrets of the US, Australia and other allies in the so-called war on terror from entering Australia.

Clause 10 of the bill gives Dutton the power to prevent a person aged 14 or over from coming back to Australia for up to two years at a time on a number of grounds. One of those grounds is that “the person has been assessed by [ASIO] to be directly or indirectly a risk to security … for reasons related to politically motivated violence”.

This provision is extraordinarily broad. How exactly might ASIO think that a person is “directly or indirectly a risk to security”? Does it include a whistleblower who reveals US and Australian misconduct in the context of ongoing military operations? Or what about a journalist and publisher who lets the world see cables, emails and other forms of communication related to terrorist activity to and from Australian security and defence agencies?

The answer is yes, it could apply in both cases. When whistleblowers, media organisations and journalists have published this kind of material — such as that of WikiLeaks, the Iraq War Logs, or the trove of materials that former National Security Agency contractor Edward Snowden smuggled out in 2013 — such exercises have been labelled as assisting terrorism.

Back in 2010 then-US vice president Joe Biden called WikiLeaks, and its founder Julian Assange, a “high-tech terrorist”. His colleague Hillary Clinton, then-secretary of state, said WikiLeaks was waging a war on the world.

In 2013 there was also the case of David Miranda who was working with celebrated journalist Glenn Greenwald in publishing material from the NSA whistleblower Edward Snowden. Miranda was carrying computer materials supplied by Snowden and this material was seized when he was at London’s Heathrow Airport. As Clive Walker from the University of Leeds noted:

The journalists viewed their mission as one of disclosure in the public interest of a vast web of governmental illegal surveillance programmes. However, the UK Security Service (MI5) contended that Miranda was concerned in ‘terrorism’ (as defined in the UK Terrorism Act 2000, section 1) because his mission sought to influence the government by promoting a political or ideological cause.

The allegation was that disclosure of the data to a hostile state (Russia) or to terrorists might imperil the identities of secret agents or the methods used for electronic surveillance of terrorists. Thus, the material was placed in the realms of terrorism (as well as official secrecy).

A year later US congressman Peter King blasted the fact the Pultizer Prize was given to Greenwald, Miranda, The Guardian and The Washington Post for publishing the Snowden material.

“The Pulitzer Prize, The Post, The Guardian, all of them, they’re working for al-Qaeda, or at least they completely sympathize with what they’re doing, and that’s what this award is about,” King said.

When the next Snowden or Chelsea Manning emerges, will any Australian living overseas who assists them — either by facilitating the leaking of material or through the publication of news about classified military materials — be labelled by ASIO as a person who is “directly or indirectly a risk to security”?

If ASIO answers yes (and of course its verdict can’t be challenged because they are secret) then the loose wording of clause 10 of the exclusion orders bill suggests that Dutton would be prepared to issue an order preventing those individuals from entering Australia.

Once again freedom of speech and freedom of the press are under direct attack.

Greg Barns is a barrister and spokesperson for the Australian Lawyers Alliance. He is a member of the Australian Assange campaign.