The return of Julian Assange to Australia has undoubtedly been the dominant news item during the last couple of days. In the pages of The Spectator Australia, Alexandra Marshall repeatedly intimated that the Assange matter has divided Australia’s conservatives. Commenting on her opinion, we have contributed a piece in which we argue that this matter should not divide conservatives because Assange’s release is a victory for freedom of speech and freedom of the press, and more importantly, is instrumental in reminding people of the dangers posed by uncontrolled governmental power to embark on secret and dangerous missions.
Following Assange’s return to Australia, Terry Barnes, in a brutal article in this publication, lambasted Assange’s release from prison in which he refers to him as a ‘convicted spy’. Relevantly, he contends that, ‘For every Australian politician, journalist and activist who hail Assange as a hero of press freedom and a shiner of light on the less savoury doings of Western governments, militaries, and security services, there are many more who shudder with revulsion at the very thought of him and his actions.’ In support of his view, he quotes frontbench opposition MP, Jane Hume, who demonised Assange for recklessly releasing ‘information that put counterintelligence and intelligence communities at risk’. In short, Barnes is clearly of the view that Assange is a disgrace to Australia and a criminal convicted of a felony. As an aside, he also criticises the Albanese government for chartering a private plane to bring Assange back to Australia, accompanied by the former Prime Minister, Kevin Rudd, and the High Commissioner of Australia to the United Kingdom, Stephen Smith.
We are convinced, however, that many conservatives will not appreciate Barnes’ article. But others, of course, will welcome it as an accurate assessment of the sort of ‘criminal activity’ which needs to be punished appropriately.
In vilifying the release of Assange, commentators appear to not really understand the dangers that governments pose to freedom of speech. Of course, it is not exceptional that a commonly used concept is misunderstood by a great number of people. One of the reasons for the existence of this phenomenon lies in the reluctance on the part of people to critically examine the consequences of the dilution of certain fundamental freedoms. Despite the voluminous nature of the relevant literature, few attempts have been made to stress the importance of freedom of speech for a healthy society based on the ideal of legality known as ‘the rule of law’. Dinesh D’Souza put it well when he said that a society ‘that was once dedicated to maximum freedom of mind and conscience now finds itself struggling to guarantee the minimum freedom insisted on by the law’. Although his comments specifically deal with the demonising of free speech on university campuses, his comments could easily be extrapolated to society as a whole.
Free speech implies one’s ability to express opinions without fear of reprisal. The ancient Greeks believed that only slaves could not speak freely. Ever since, free speech has been historically acknowledged as a fundamental right of every free individual, which works as a mechanism to avoid the concentration of power in the hands of a few. Of course, members of the ruling elite, including those working in intelligence gathering, have a personal stake in preserving the benefits associated with their status. These privileged individuals may attempt to do so by suppressing the manifestation of any reasonable political dissent and, accordingly, by resisting the publication of ‘sensitive’ or ‘incriminating’ materials, which are deemed to be detrimental to their accumulation of more power and control. In short, they may aspire to suppress any speech or the release of information that might be construed as a threat to their hegemonic power.
Since the exercise of free speech naturally threatens the established order, as it risks exposing the agenda of certain privileged groups, the focus of authorities may not be necessarily on protecting the speech of everyone but only that of a few selected individuals, or powerful bureaucracies. It is not difficult, therefore, to understand why the ruling elite may desire to reduce any threat to the dominating discourse. Free speech may cause embarrassment to such privileged groups when any particular agenda is advanced that is objectively contrary to the best interests of society at large. To preserve their vested interests, the ruling elite may be tempted to abrogate free speech. This temptation is motivated, not by a desire to improve our social condition, or to advance the common good, but to obtain undue advantages and consolidate the power of those who control the official narrative.
A truly democratic society is the one which necessarily acknowledges the concept of popular sovereignty. To exercise their sovereign power, Australians must be free to communicate about government and political matters and to expose any governmental shenanigans, fully and frankly. Accordingly, no Australian Parliament should ever be constitutionally authorised to introduce any legislation, including espionage legislation, which prevents the sovereign people of Australia from freely expressing their political views and to publish their findings, as this is just not compatible with the value of a democratic society of free individuals.
Returning to the Assange matter, he is the co-founder of WikiLeaks, which was awarded the Walkley Award for Most Outstanding Contribution to Journalism in 2011, an annual prize to reward excellence in Australian journalism, in recognition of the impact of WikiLeaks’ actions on public interest journalism by assisting whistle-blowers to tell their stories. His legal battle began in 2010, when WikiLeaks disclosed confidential military files from the wars in Iraq and Afghanistan, including a video of a 2007 Apache helicopter attack by American forces in Iraq that killed 11 innocent civilians, including two Reuters journalists. As admitted by the United States, not a single life has been lost because of the release of the now notorious documents published by Wikileaks.
Assange released via WikiLeaks 391,832 documents, incriminating America’s involvement in the wars in Iraq and Afghanistan, on the internet. As mentioned above, this included abuses by American soldiers and a video of an American helicopter attack in Iraq on suspected militants, who were unarmed civilians and journalists. The files, posted to the internet, were acquired by Chelsea Manning, an Army private, and handed over to WikiLeaks. Manning served seven years in jail but granted amnesty by President Barack Obama in 2017. Yet, the WikiLeaks’s publisher, Julian Assange, who himself did not appropriate these documents, remained languishing in jail.
What is particularly important to consider is that, thus far, no one has suggested that the authorities in the United States had a duty to ensure that their secret and sensitive information was securely stored. In not securing the information, the authorities in effect committed a transgression themselves by inviting more competent investigative journalists and publishers (and yes, also, thieves) to obtain the information for the purpose of exposing crimes committed by the government.
It is quite important here to remind our readers about his awful ordeal. Assange first fled to the Ecuadorean Embassy in June 2012 to avoid capture and extradition to Sweden where he had been accused of sexual assault – a charge since dropped by the Swedish authorities. Assange was evicted from the Embassy in April 2019, and he was then held in the UK’s notorious Belmarsh prison, fighting extradition to the United States where he could have spent up to 175 years in jail for computer hacking and espionage. During the extradition hearings, representatives of the United States argued that the publication of the documents endangered the lives of people, especially those who collaborated with the American military.
For years, people across the globe called for Assange to be returned to his native country Australia. Detained for the past eleven years in the UK, psychologically damaged and isolated in a maximum-security jail for the past two-and-a-half years, it is quite clear that Assange suffered enough. His quest to be released was constantly in the news, thereby reminding people of the importance of free speech in the maintenance of a free, democratic society. Of course, US prosecution of Julian Assange on espionage charges for acts of journalism intensified the chilling effect on global media, leading journalists to self-censor from fear of prosecution.
If there is one thing these last four years have taught us is that we should never trust government authorities to hide information from the public. In Australia, and elsewhere, we have already embarked on this perilous journey with the adoption of anti-vilification legislation, hate speech legislation, disinformation and misinformation laws, laws penalising even prayer in the vicinity of abortion clinics, banning any criticism of prohibition of conversion legislation, ostracising religious expression in the public forum, and so on. The list is endless.
Terry Barnes undoubtedly is correct to assume that, like the Hon Jane Human MP, many Australians will be ‘revolted’ by Julian Assange’s return. As for us, we proudly stand for freedom and celebrate Assange’s return. Indeed, we strongly believe that it was entirely appropriate for the US government to drop all these charges against Assange and allow him to return to Australia. We can only hope that the controversy about his release will become a constant reminder of the need to protect whistle-blowers, willing to disclose corruption and dastardly dealings in society.
Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University.
Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia.