There is no need to modify Australian law to criminalise WikiLeaks

Gillards Says Assange Has Acted illegally 

Instead of pursuing the website for espionage, Australia should question potential US misconduct.

Western governments have gone into overdrive to discredit WikiLeaks and its founder, Julian Assange, for endangering global security. Both the US and Australia have launched criminal investigations into those who leaked and received the information.

US Secretary of State Hillary Clinton described the leaks as "an attack on the international community". The White House called those responsible "criminals" and the US is exploring espionage charges against Assange. A prominent US Republican even called for WikiLeaks to be banned as a terrorist organisation. Our own Attorney-General asked the federal police to investigate Assange. Australia finds itself in step with the criticisms of Iran, China and Turkey.

Have Assange or WikiLeaks broken Australian law? The short answer is no. There is no legal duty on ordinary Australians, here or overseas, or foreign media entities not to disclose information that may prejudice Australia's security or the security of foreign governments.

There are numerous legal restrictions on disclosing protected information, but none of those apply to Assange or WikiLeaks. Under federal criminal law and public service employment contracts, Australian officials are prohibited from disclosing protected information. The further crime of divulging official secrets covers those who receive confidential information from Australian officials and unlawfully disclose it.

Neither offence applies here, since information was not leaked from Australian officials or received from them by WikiLeaks, but came from US sources. Also irrelevant are offences concerning disclosure of protected information during court proceedings or ASIO operations.

Other security offences are also inapplicable. The crimes of treason and treachery involve assisting those fighting Australian forces or a declared enemy of Australia, but only where the person intends their conduct to so assist. The offence of espionage involves providing information concerning Australia's security, but only where the disclosure is unlawful and the person intends to advantage another country's security.

None of these three crimes would apply to WikiLeaks, because Assange did not release security information with the intention of harming Australia's interests, but purportedly in the public interest. Any espionage prosecution under US law would probably fail for a similar reason.

Likewise, publishing the leaks does not meet the fault requirements of Australia's anti-terrorism or sedition crimes, or the offence of harming Australians abroad. There is also no basis for declaring WikiLeaks a terrorist organisation or an unlawful association.

The only area where Australian law may be relevant concerns not the leaks, but Assange's personal behaviour. Interpol has issued an arrest request for him on Swedish rape charges and Australia would be required to apprehend him should he return to Australia. Even Ecuador may no longer be interested in giving him asylum if those charges are proved.

Under Australian law, as in most countries, the protection of security information is primarily achieved by regulating those entrusted with the information. That means vetting and supervising government personnel and imposing dissuasive penalties for breaches. The US is rightly investigating a former military analyst for breaching such duties.

Maintaining the confidentiality of internal diplomatic notes enables diplomats to give full and frank advice to their governments, even where it includes gossip about the drinking and dancing habits of foreign politicians. Maintaining the confidentiality of diplomacy is necessary to guarantee trust between governments. Information would only be shared reluctantly if secrecy could not be assured by foreign governments.

At the same time, penalties for unlawful disclosures must be balanced against protection of whistleblowers. The public disclosure of information sometimes aims to expose wrongful conduct by others in government. The WikiLeaks revelations have detailed torture by US forces in Iraq, war crimes by US pilots in Afghanistan, and even espionage by the US against the United Nations Secretary-General.

These are matters of global public interest. A "rock solid" ally like Australia should protest to the US about such misconduct and "punch" harder than the US believes us capable of. The leaks reveal that some information over which governments claim confidentiality is genuinely in the public interest. The protection of such information can dangerously cloak state illegality and shield official lawlessness.

There is no need to modify Australian law to criminalise WikiLeaks. Prohibiting ordinary citizens or the media, as opposed to government officials, from publishing leaked information would interfere too far into freedom of expression and the public interest in accountability which it protects. It is primarily the duty of governments to safeguard information, not individuals acting on government failures.

Even so, the media have professional obligations to assist governments by responsibly exercising their watchdog functions. The media should not just publish material instinctively or provocatively, regardless of the consequences for human life. The media need to exercise careful judgment here, and there may be real questions about WikiLeaks' performance.

Evidence of crime, however, may lie elsewhere. The malicious denial-of-service attacks on WikiLeaks should be investigated by Australia as possible offences under Australian law, given that the attacks affected access to the website here. Australia could use its new Cyber Security Centre to track down the perpetrators. The US government is an obvious suspect — and a promising place to start.

Associate Professor Ben Saul is co-director of the Sydney Centre for International Law at the University of Sydney and a barrister specialising in security law