Australia: Sentencing of whistle-blower and crackdown on protests a setback for civic freedoms

Australia’s civic space remains rated as ‘narrowed’ by the CIVICUS Monitor in its most recent report published in December 2023. Concerns highlighted previously include the continued prosecution of whistle-blowers, the passage of anti-protest laws which are at odds with Australia’s international obligations, and the arrest of climate and pro-Palestinian protesters.

In recent months, a former army lawyer was convicted for revealing information about alleged Australian war crimes in Afghanistan. Four pro-Palestinian writers had their contracts abruptly terminated by the state library in Victoria. Pro-Palestinian protests have been disrupted and protesters arrested, while climate protesters have continued to be criminalised.

Expression

War crimes whistle-blower sentenced to jail

Former Australian Army lawyer David McBride (pictured above) was sentenced to five years and eight months on 14th May 2024 for revealing information about alleged Australian war crimes in Afghanistan.

McBride leaked documents to the ABC that formed the basis for the broadcaster’s landmark Afghan Files reporting, which showed credible evidence of war crimes committed by Australian forces in Afghanistan. The reporting was subsequently confirmed by the Brereton Inquiry that found evidence that Australian forces had unlawfully killed 39 Afghans during the war.

McBride had argued he was immune from prosecution under federal whistle-blowing law, but withdrew that defence in 2022. He then argued that the offences he was charged under contained a public interest element; after that was rejected by the trial judge, he pleaded guilty in November 2023.

Kieran Pender, Acting Legal Director at the Human Rights Law Centre, said: “This is a dark day for Australian democracy. The imprisonment of a whistle-blower will have a grave chilling effect on potential truth-tellers. Our democracy suffers when people can’t speak up about potential wrongdoing. There is no public interest in prosecuting whistle-blowers.”

Rawan Arraf, Executive Director at the Australian Centre for International Justice, said: “It is a travesty that the first person imprisoned in relation to Australia’s war crimes in Afghanistan is not a war criminal but a whistle-blower – the person who leaked documents to the ABC that enabled important public interest journalism. The case has significantly undermined Australia’s commitment to implementing the findings of the Brereton Inquiry.”

McBride's case has sparked uproar in Australia, putting a spotlight on what some say are flimsy whistle-blower protections and slow progress towards prosecuting soldiers alleged to have killed with impunity. Human rights groups have also called for reforms to the federal whistle-blowing law – the Public Interest Disclosure Act - and the establishment of a whistle-blower protection authority.

According to the Human Rights Law Centre, McBride is the first whistle-blower to be imprisoned in Australia. Witness K, who exposed Australia’s spying against Timor-Leste, was given a suspended sentence; the prosecution of his lawyer, Bernard Collaery, was dropped by the Attorney-General, Mark Dreyfus KC, after the Albanese Government took office. Tax office whistle-blower Richard Boyle will face trial in September 2024.

The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has stated that whistle-blower protections rest upon a core right to freedom of expression and the public’s right to know, as established under Article 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Basic protections are critical to an effective right to freedom of expression, accountability and democratic governance.

Victoria state library terminates contracts of four pro-Palestine writers

Four pro-Palestinian writers who were supposed to run workshops for the State Library of Victoria (SLV) had their contracts abruptly terminated in February 2024, with the Library claiming it had concerns over “child and cultural safety”. The workshops covered fiction, nonfiction, playwriting and poetry.

The four include award-winning poet Omar Sakr, young adult author Alison Evans, journalist Jinghua Qian, and Ariel Slamet Ries, a comic artist and illustrator. All four had publicly opposed Israel’s war on Gaza.

Their firing, however, sparked a staff revolt at the SLV who claimed senior management sent a message of “censorship and discrimination” to three authors. Authors around the country also rallied to publicly express their support for the four sacked writers. In a protest letter, authors said that “the library's reasoning implies the institution, and the writers themselves, are dangerous or unsafe and is completely unacceptable for the writers involved”. They added that “we consider this defamatory and damaging.”

Peaceful Assembly

Ongoing crackdown on pro-Palestinian protests

There have been multiple pro-Palestinian protests in Australia following the outbreak of the conflict in Gaza between Israel and Hamas in October 2023, protesting killings and other atrocities against the civilian population. In some cases, the authorities have responded with arbitrary restrictions or arrests of protesters in clear contravention of their rights to freedom of peaceful assembly.

On 22nd January 2024, at least ten people were arrested by police at a pro-Palestinian protest at the Port of Melbourne. Activists had been protesting at the Webb Dock preventing an Israeli-owned shipping company, ZIM, from unloading and forcing it to anchor in the bay. Nine were charged with trespassing and one with criminal damage. Volunteer legal observers from Melbourne Activist Legal Support (MALS) who were at the rally raised concerns for what they say was an unlawful use of pepper spray and the treatment of one activist in a wheelchair who they say was "pushed over and dragged out of the chair.”

Another Free Palestine march on 4th February 2024 in the Melbourne CBD was also met with unnecessary force. The Melbourne Activist Legal Support (MALS) expressed concern regarding the violent and unsafe policing of protesters and legal observers at the march. Legal observers witnessed and recorded multiple instances of police grabbing, shoving, pushing and using offensive language towards protestors. Many of these incidents appeared to be forceful, intimidating and dangerous. MALS legal observers also encountered obstruction by police when attempting to identify and make contact with the Forward Commanders before the protest began. At least one person was arrested.

Nineteen people were arrested at a pro-Palestine protest at Port Botany in Sydney on 25th March 2024. Protesters, including members of the Maritime Union of Australia, were demonstrating against the Israel-owned ZIM shipping company. Among those arrested was MUA’s Sydney branch secretary, Paul Keating.

The union said 15 minutes after the protest began, police moved in and began assaulting and arresting demonstrators. Police alleged the group had moved to Penrhyn Road which leads to the Patrick Terminals facility on the dock, “blocking the roadway and access to the port”, at about 9.30pm. They were directed to move but police said some had not complied and were arrested for disobeying police directions. The 19 people arrested were taken to Surry Hills police station.

More than a dozen people were arrested on 15th April 2024 after train stations, ports and parts of Australia's biggest cities were disrupted by protesters against the war in Gaza. Pro-Palestinian group A15 Action said the protests were in retaliation for the federal government's actions since Israel declared war on Hamas in Gaza. Victoria Police confirmed 14 people had been arrested in Port Melbourne where the road was blocked, while two people were arrested for criminal damage at the intersection of Victoria Street and Nicholson Street at Carlton.

In November 2023, UN experts expressed alarm at the worldwide wave of attacks, reprisals, criminalisation and sanctions against those who publicly express solidarity with the victims of the ongoing conflict between Israel and Palestine. The experts noted a highly disturbing trend to criminalise and label pro-Palestinian protests as “hate protests” and to pre-emptively ban them, often citing risks to national security, including risks related to incitement to hatred, without providing evidence-based justification.

Criminalisation of climate protesters continues

In recent years, protests by climate activists have been disrupted, with some arrested and charged.

On 20th February 2024, climate activists protesting against Woodside Energy's Browse gas project outside the company's Perth headquarters were arrested. Dozens of activists gathered holding placards and flags, blocking traffic outside the Woodside building. Police arrested and carried protesters off the road towards police vehicles.

Woodside, the operator of the Browse Joint Venture, plans to develop three gas fields about 425 km north of Broome in the offshore Browse Basin. Activists said it could endanger marine life and contribute to the release of billions of tonnes of greenhouse gas from Woodside's Burrup Hub.

Two environmental activists were jailed on 5th March 2024 for causing major traffic disruptions in Melbourne, after they used a rental truck to block the West Gate Bridge. Extinction Rebellion members Deanna "Violet" Coco, 33, and Bradley Homewood, 51, were each ordered to spend 21 days in prison after pleading guilty to charges of public nuisance and intentionally obstructing police. Angry about a lack of government action on climate change, the group stopped the truck on the West Gate Bridge — blocking several lanes — before climbing on top of the vehicle and lighting a flare.

On 16th March 2024, climate change protesters were arrested in Melbourne's CBD after staging a sit-in blockade of Flinders Street Station. A week of protests on Melbourne's streets culminated with the sit-in, with the group demanding the federal government declare a climate emergency. Shortly after they arrived, police began to arrest members of the group who were sitting in the middle of the intersection. Police said 32 people were arrested during the blockade and, of those, 27 people will be charged on summons with obstruction of a road.

Human rights groups have raised concerns that this politically motivated crackdown on protest by the authorities appears designed to intimidate the climate movement and create a chilling effect on those thinking of taking to the streets. It is also inconsistent with the right to freedom of peaceful assembly, guaranteed in the International Covenant on Civil and Political Rights (ICCPR), which Australia is a state party to.

NSW government urged to scrap anti-protest law

On 10th May 2024, the Human Rights Law Centre (HRLC) called on the New South Wales (NSW) government to protect the right to peaceful protest in NSW and scrap draconian anti-protest laws. The group said that the current anti-protest laws in NSW are anti-democratic, disproportionate and violate international human rights law, in particular the freedom of expression and peaceful assembly. The NSW Government will be conducting a 2 year review of the anti-protest legislation.

HRLC said that the current laws, which were rushed through in April 2022 in 30 hours, deliberately target protesters, threatening everyone from school children marching for climate action to anti-war protestors with up to two years in jail and a $22,000 (USD 14,700) fine. The broad and vague wording of the laws dramatically expanded where an offence could apply, leaving ordinary people unsure of their lawful ability to protest. Parts of these laws were also recently struck down as unconstitutional by the NSW Supreme Court.

David Mejia-Canales, Senior Lawyer at the HRLC, said: “The right to peaceful protest has been under attack in NSW and across Australia. The current laws are not only anti-protest, they are anti-democratic. The review is an opportunity for the Minns Government to do the right thing and protect our democracy and the right to peaceful protest by scrapping these laws.”