Kellie Tranter: Letter to The Hon. Bob Carr Minister for Foreign Affairs

Letter to The Hon. Bob Carr Minister for Foreign Affairs

The Hon. Bob Carr

Minister for Foreign Affairs

PO Box 6100

Senate

Parliament House

Canberra  ACT  2600

11 October 2012

Dear Sir

RE:      MR JULIAN ASSANGE & THE SAFETY OF JOURNALISTS

In its quest for a non-permanent seat at the United Nations Security Council the Australian Government has attempted to project to the rest of the world an image of commitment to promoting and protecting human rights universally. But at the same time it has demonstrated to the world an unwillingness or inability to look after one of its own citizens, Mr Julian Assange, an online publisher and journalist.

In June the Australian Government released a Statement for the Clustered Interactive Dialogue with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur on extrajudicial summary or arbitrary executions confirming that:

“Australia recognises and sends sympathies to the numerous victims of attacks against journalists around the world. We are aware of the dangerous environments in which journalists work and support efforts to ensure journalists’ personal safety as well as their enjoyment of their right to freedom of opinion and expression.

We also support policy work which recognises the unique role journalists play in the effective functioning of democracy. Free journalism is central to democracy, especially when journalists report on street protests and demonstrations or when reporting on politically sensitive issues such as human rights violations, corruption or public crises….”

You may remember that in a 2010 interview on the ABC Mr Frank LaRue, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, warned against prosecuting Mr Assange and reiterated, “I will hope certainly that the principle of freedom of expression is the one that prevails because I believe that even if the US feels embarrassed it will be a bad example if anyone is harassed or charged or prosecuted for that.”

It appears that at that time Mr LaRue was concerned about the events that were unfolding after the release of US diplomatic cables by both WikiLeaks and mainstream news organisations. He and the Inter-American Commission on Human Rights (IACHR) released a ‘Joint Statement on WikiLeaks’ to remind States of international legal principles, including the fact that:

‘Public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately classified information under their control. Other individuals, including journalists, media workers and civil society representatives, who receive and disseminate classified information because they believe it is in the public interest, should not be subject to liability unless they committed fraud or another crime to obtain the information. In addition, government “whistleblowers” releasing information on violations of the law, on wrongdoing by public bodies, on a serious threat to health, safety or the environment, or on a breach of human rights or humanitarian law should be protected against legal, administrative or employment-related sanctions if they act in good faith. Any attempt to impose subsequent liability on those who disseminate classified information should be grounded in previously established laws enforced by impartial and independent legal systems with full respect for due process guarantees, including the right to appeal.’

Mr LaRue is mandated to promote and protect the freedom of opinion and expression and it appears that he can receive individual complaints should aggrieved parties wish to pursue that course of action.  Many Australians share the Special Rapporteur’s view that journalism is an activity and profession that provides a necessary service for any society, giving individuals and society as a whole the information necessary to allow them to develop their own thoughts and to freely draw their own conclusions and opinions and many Australians believe that the Australian Government’s failure to act in relation to Mr Assange falls short of its obligations.

On September 27, UN resolution (A/HRC/21/L6) regarding the safety of journalists was adopted without a vote, with the Human Rights Council recalling the rights contained in the International Covenant on Civil and Political Rights (ICCPR), in particular article 19, condemning in the strongest terms all attacks and violence against journalists, such as torture, extrajudicial killings, enforced disappearances and arbitrary detention, as well as intimidation and harassment.

It called upon States to promote a safe and enabling environment for journalists to perform their work independently and without undue interferences, including by means of (a) legislative measures; (b) awareness-raising in the judiciary, law enforcement officers and military personnel, as well as journalists in civil society, regarding international human rights and humanitarian law obligations and commitments relating to the safety of journalists; (c) the monitoring and reporting of attacks against journalists; (d) publicly condemning attacks; and (e) dedicating necessary resources to investigate and prosecute such attacks.

You may not be aware that the United States said, in explaining its vote before casting it: ‘… the free flow of news and information created a dynamic society. Journalists remained threatened all around the world, on the basis of misuses of laws such as terrorism laws. The United States appreciated that the resolution condemned violations of the journalists’ right to freedom of expression both by States and by non-States actors of all kinds. International human rights law and humanitarian law contained mutually reinforcing rules. The United States recognised the vital role of an open press and would continue to work for the protection of journalists.’

The rhetoric of the United States Government, our ally, stands in hypocritical contradistinction to its aggressive pursuit of Mr Assange for his publishing activities.

Australia agreed to be bound by the ICCPR in 1980. And although Australia is not currently a member of the United Nations Human Rights Council, it is an active participant at the Council’s sessions, which makes the Australian Government’s position in relation to Mr Assange untenable having regard to the concerns the Australian Government has expressed at an international level about the need to ensure the safety of journalists.

Last year the Special Rapporteur, Mr LaRue, stressed to the UN Human Rights Council in June, and again to the UN General Assembly in October, that the Internet is an instrument of freedom of expression. But it is his reports of 16 May 2011 and 4 June 2012 that I specifically wish to draw your attention to.

The report of 16 May 2011 confirms that:

‘…Unlike any other medium, the Internet enables individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders. By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an “enabler” of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole.

…The Special Rapporteur remains concerned that legitimate online expression is being criminalised in contravention of States’ international human rights obligations, whether it is through the application of existing criminal laws to online expression, or through the creation of new laws specifically designed to criminalise expression on the Internet. Such laws are often justified on the basis of protecting an individual’s reputation, national security or countering terrorism, but in practice are used to censor content that the Government and other powerful entities do not like or agree with.

….Additionally, the Special Rapporteur reiterates that the right to freedom of expression includes expression of views and opinions that offend, shock or disturb. Moreover, as the Human Rights Council has also stated in its resolution 12/16, restrictions should never be applied, inter alia, to discussion of Government policies and political debate; reporting on human rights, Government activities and corruption in Government; engaging in election campaigns, peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups….’

May I ask you Mr Carr: does the Australian Government agree with the Special Rapporteur’s views? If not, please explain to me why not.

In his 4 June 2011 report, Mr LaRue highlights that:

  • an attack against a journalist is not only a violation of his or her right to impart information, but also undermines the right of individuals and society at large to seek and receive information, both of which are guaranteed under articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights respectively. Indeed, without respect for freedom of expression, and in particular freedom of the press, an informed, active and engaged citizenry is impossible.  An attack against a journalist is therefore an attack against the principles of transparency and accountability, as well as the right to hold opinions and to participate in public debates, which are essential for democracy;
  • in addition to articles 19 of the Declaration and of the Covenant, which protect the right of journalists to seek, receive and impart information and ideas of any kind through any medium of communication, journalists are also protected under other provisions in international human rights law, including the right to life, freedom from torture and arbitrary arrests and detentions, and the right to an effective remedy;
  • the problem with regard to continued and increasing violence against journalists is not a lack of legal standards, but the lack of implementation of existing norms and standards;
  • the right to freedom of expression should be fully guaranteed online, as with offline content. If there is any limitation to the enjoyment of this right exercised through the Internet, it must also conform to the criteria listed in article 19, paragraph 3, of the International Covenant on Civil and Political Rights;
  • there is a need to ensure that journalists can effectively carry out their work means not only preventing attacks against journalists and prosecuting those responsible, but also creating an environment where independent, free and pluralistic media can flourish and journalists are not placed at risk of imprisonment;
  • the continuing existence and use of criminal laws against journalists and members of the media, which are often used by authorities to suppress “inconvenient” information and to prevent journalists from reporting on similar matters in the future.  Consequently, there is a chilling effect which stifles reporting on issues of public interest. Charges such as treason, subversion and acting against national interests continue to be brought against journalists worldwide, as well as allegations of terrorism and criminal defamation for reporting false news or engaging in ethnic or religious insult; and
  • while protecting individuals from false and malicious accusations, protecting national security or countering terrorism are legitimate interests, the Special Rapporteur remains concerned that such pretexts are used by authorities to unduly control and censor the media and to evade transparency or to silence criticism of public policies;

Does the Australian Government accept the Special Rapporteur’s views, Mr Carr? If not, please explain why.

In that same report, Mr LaRue calls on all States to publicly condemn all forms and incidents of attacks against journalists at the highest political level. He reiterated in his report that journalists should not be held accountable for receiving, storing and disseminating classified data which they have obtained in a way that is not illegal, including leaks and information received from unidentified sources.

Ms Jen Robinson, Julian Assange’s lawyer, confirmed that  ‘..The Australian Government has been requested to make representations to the United States about their ongoing criminal investigation and to seek an assurance that they would not prosecute for what is essentially journalistic activity.  The Australian Government conceded in a meeting with me [Jen Robinson], through the Attorney General, that it is possible to seek that assurance, they can seek that assurance, but they are specifically deciding not to…”

Given that Ms Robinson is highly respected in both the legal profession and the broader community and is clearly not one prone to exaggeration, one can only assume that her version of the events is correct.

Mr Carr, would you explain why to date the Australian Government has not publicly condemned the current investigation of WikiLeaks and Mr Assange, which is reportedly  “unprecedented in size and scale”, and confirm when such assurances will be sought by the Australian Government in accordance with the recommendations made by the Special Rapporteur.

GetUp is also calling on you to “stand up for press freedom, and to seek a guarantee that the United States will not seek the extradition of Julian Assange, nor prosecute him for his work as a journalist and publisher”. In response I understand that your spokesman said that “the Government does not seek assurances on hypothetical situations, and it could not interfere with another country’s legal process”.  With respect, this is hardly a “hypothetical” situation in light of the grand jury sitting in Alexandria Virginia (10GJ3793 – conspiracy to commit espionage).

Again, please confirm how this response satisfies the Special Rapporteur’s recommendations for States to be proactive, to publicly condemn all forms of attacks, to investigate, and to ensure that the rights of all journalists are protected?

In May this year you failed to respond clearly to the question put to you on Lateline when you were specifically asked whether you consider Mr Assange to be a journalist.

Do you accept that Mr Assange is an online publisher and journalist? And do you accept that Mr Assange has fulfilled the obligation outlined in the Declaration of Principles on the Conduct of Journalists of the International Federation of Journalists, which proclaims that “respect for truth and the right of the public to truth is the first duty of the journalist”?

You may be aware that the UN Human Rights Committee has adopted a functional definition of journalism, by defining journalism as “a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the Internet or elsewhere.”

Does the Australian Government accept this definition of journalism? If not, please explain why not.

Finally, has the Australian Government had any communication with or sought advice from the Special Rapporteur, Mr LaRue, in relation to WikiLeaks, Mr Assange’s case and the ongoing financial blockade put in place by credit card merchants here in Australia, given that the Special Rapporteur has previously pointed out that corporations have a responsibility to respect human rights, which means that they should act with due diligence to avoid infringing the rights of individuals?

I would be grateful for your considered response to these questions, and not just a pro-forma letter. Could you please address these questions and provide a direct and genuine response to each?

Yours faithfully

Kellie Tranter

Lawyer and human rights activist

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