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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Illegal Detention of Australian Journalists (Free Julian Assange) Bill 2021
A Bill for an Act relating to the detention of Australian journalists by foreign governments,
and for related purposes
EXPLANATORY MEMORANDUM
Circulated by authority of
George Christensen MP
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Illegal Detention of Australian Journalists (Free Julian Assange) Bill 2021
OUTLINE
In an increasingly volatile world, the role of the fourth estate in holding authorities to account has
never been more vital. A world devoid of freedom of speech and freedom of the press, creates a
democratic void and undermines the liberal democratic values Australia holds dear. Journalists and
publishers play a crucial role in shining a light on human rights abuses, holding oppressive authorities
to account, and independently reporting facts including allegations of corruption, civil unrest, conflict
and war. The rise of authoritarianism, and the inclination of oppressive regimes to censor, harass,
detain, torture and engage in the extrajudicial assassination of journalists under the guise of national
security or espionage offences has become an increasingly troubling phenomenon.
The brutal killing of Jamal Khashoggi exemplifies this dangerous reality for journalists, in all parts
of the world. The Committee to Protect Journalists estimates that between 1992 and 2021, 1418
journalists were killed in the course of undertaking regular journalistic activity. In 2021 alone, 274
journalists have been imprisoned globally, and a further 66 are confirmed as missing.1 Censorship
and methods of intimidation are also commonly used, such as threats of prosecution, and detaining
family members.
This Bill therefore seeks to protect Australian journalists from politically motivated detention and
prosecution by foreign powers, such as those which engage in hostage diplomacy and/or political
persecutions in order to impede transparency, hide potential misconduct and/or human rights abuses,
and engage in prosecutions that subsequently result in a chilling effect for freedom of the press,
thereby threatening underlying liberal democratic values.
The Bill seeks to clearly define 'journalism' to include conduct engaged in the regular course of
legitimate journalism, such as publishing and passively receiving information. This includes conduct
engaged in for the purpose of journalistic activity that would not be subject to an offence in Australia.
Section 4 (1 and 2) of the Bill seeks to enshrine an offence of seven years imprisonment for a head
of a foreign government, if the government detains an Australian journalist, or requests another
foreign government to detain an Australian journalist, in the course of undertaking legitimate
journalistic activity.
Section 5 of the Bill specifically addresses conduct engaged in by agents of a foreign government.
For example, if the head of a foreign government has contracted out the detention of the Australian
citizen undertaking journalism, they would still be liable for prosecution under this Act. This would
include private security contractors and intelligence agencies.
1 These figures are most likely underreported. Source Explore CPJ's database of attacks on the press
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The Bill also covers journalistic conduct that is alleged to have occurred in any jurisdiction, due to
the recent move of foreign governments seeking the extraterritorial prosecution of Australian
publisher, Julian Assange.
Section 4 (3) provides a clause pertaining to the real and underlying clause of the detention in order
to clearly provide protections for politically motivated detentions. Numerous reports suggest that
foreign governments charge journalists with offences such as sedition, national security and
espionage related breaches of respective criminal codes in an attempt to cloak and 'legitimise'
politically motivated prosecutions. This is exemplified by the current situation faced by several
Australian journalists detained abroad including, Julian Assange, at the behest of the UK and US
governments and Cheng Lei, at the behest of the Chinese Communist Party.
Therefore, the Bill seeks to prohibit an Australian journalist from being detained for engaging in
conduct that is regular journalistic activity under the guise of ancillary violations. For example, if an
Australian journalist is detained for contravening, or allegedly contravening a law that is ancillary to
another law, and that conduct is regular journalistic activity, the detention is taken to be because of
the legitimate journalistic activity. These ancillary violations may include something as minor as a
bail breach.
Finally, the Bill seeks to provide that if an Australian journalist is detained as described in Section 4,
and they are transferred to the custody of the Commonwealth, they are to be immediately released,
even if this is as a result of a prisoner transfer agreement.
For the purposes of this legislation, Section 6 of the Bill recognises that the conduct alleged by the
government of the United States of America by Julian Paul Assange as editor of WikiLeaks is deemed
as regular journalistic activity.
The legislation engages several human rights provisions and seeks to reinforce Australia's accepted
obligations under the Universal Declaration of Human Rights (UDR) and the International Covenant
on Civil and Political Rights (ICCPR) to which Australia is a signatory. Specific engaged provisions
of the ICCPR include the right to self determination (Article 1), Article 9 and 14 which engage the
right to be free from arbitrary detention and receive a fair trial, and Article 19 which protects freedom
of expression.
This Bill therefore enhances existing human rights protections by adhering to Australia's obligations
under the Universal Declaration of Human Rights, the CAT, and the ICCPR by ensuring specific
protections for Australian journalists.
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FINANCIAL IMPACT
The bill will have no financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to this Bill and
assesses that the amendments are compatible with Australia's human rights obligations. A copy of
the Statement of Compatibility with Human Rights is at Attachment A.
NOTES ON CLAUSES
Section 3
▪ The words have their ordinary meanings in this Act.
o Detained includes being arrested and imprisoned.
o Journalism under 3(d) includes engaging in publishing
o Journalistic activity includes conduct engaged in for the purposes of
journalistic endeavours; including receiving information as a journalist.
o Journalistic activity includes conduct engaged in the ordinary course of
journalism as defined in Section 126J of the Evidence Act 1995.
o Legitimate journalistic activity does not include conduct which would
constitute an offence against a law of the Commonwealth or of a State or
Territory.
o Requests includes encourages, incites or pressures which would include
foreign government requests to agents of the government, even if this is
extraterritorial.
Section 4
▪ (1) Specifically outlines that a person commits an offence if they are 1(a) head of a
foreign government; and (b) an Australian citizen is detained by the foreign
government; or they request another foreign government to detain the Australian
citizen because of legitimate journalistic activity.
▪ Section 4(2) outlines that a person commits an offence and is liable to 7 years
imprisonment if they are the head of a foreign country and; (b) the government of
another foreign country requests the detention of an Australian citizen; and (c) the
government of the other foreign country makes the request for legitimate journalistic
activity; and (d) they detain the Australian citizen because of that request.
▪ Section 4 (3) covers the underlying causes of detention, and deems that the underlying
reason for detention of an Australian citizen must be determined by reference to real
cause, rather than the legal form employed. For example, this may pertain to charges
under the foreign state's criminal code of espionage related charges, when the real
reason for detention is the legitimate journalistic activity. Therefore, Section 4 (a, b,
c) outlines that if an Australian citizen is detained for contravening, or allegedly
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contravening a law that is ancillary to another law, and that conduct is regular
journalistic activity, the detention is taken to be because of the journalistic activity.
▪ Section 4(5) makes specific reference to conduct engaged by the foreign government
to include (a) an agent of the government; or (b) another person acting on behalf of or
on orders of, or at the behest of a government, is taken to be engaged by the foreign
government. For example, if a foreign government orders its intelligence arm to detain
an Australian journalist for engaging in legitimate journalistic activity, the foreign
head of state will still be liable under the Act.
▪ Section 5 (1) outlines that if an Australian citizen is detained by a foreign power as
described in subsection 4(1) or (2), and they are transferred to the custody of the
Commonwealth (including in accordance with the Transfer of Prisoners Act 1997),
the Commonwealth or State, or Territory must immediately release the Australian
citizen from custody.
▪ Section 6 outlines transnational provisions that seek to codify that if an Australian
citizen was detained as mentioned in subsection 4(1) or (2) before commencement of
this Act; and (b) was not released from that detention prior to the commencement, then
for purposes of section 4, the Australian citizen is taken to be detained as mentioned
in that section on that commencement.
▪ Additionally, 6(2) provides that for the purposes of this Act, conduct engaged in by
Julian Paul Assange as Editor in Chief of WikiLeaks is legitimate journalistic activity.
Mr George Christensen MP, Member for Dawson.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Illegal Detention of Australian Journalists (Free Julian Assange) Bill 2021
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The purpose of this Bill is to protect Australian journalists from politically motivated prosecutions
as a result of legitimate journalistic activity.
Human rights implications
Several human rights instruments are engaged in relation to this bill, all of which form core of
Australia's commitments and obligations.
• Universal Declaration of Human Rights (UDHR)
• International Covenant on Civil and Political Rights (ICCPR)
• Convention Against Torture and other Cruel, Inhuman, or degrading Treatment or Punishment
(CAT)
Australia has voluntarily accepted its responsibilities under these international instruments.
The right to life is non-derogable under international human rights law and is enshrined in Article 3
of the Universal Declaration of Human Rights, and Article 6 (1) of the International Covenant on
Civil and Political Rights. The Bill protects his right by ensuring that a foreign head of state commits
an offence if they imprison an Australian journalist for engaging in legitimate journalistic activity.
This would be inclusive of death penalties or imprisonment that equate to life behind bars, which is
effectively a death sentence.
Article 2 of the ICCPR notes that each "State Party to the present Covenant undertakes:(a) To ensure
that any person whose rights or freedoms as herein recognized are violated shall have an effective
remedy, notwithstanding that the violation has been committed by persons acting in an official
capacity", in effect, meaning that it should not matter whether the individual who has carried out the
violation is a head of State, or an agent of the state, the person who is violated should have access to
the appropriate remedy. This Bill promotes access to the right to seek remedy for a violation against
an Australian journalist, even if that violation was conducted by a foreign head of state, or at the
behest of that head of state.
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Australian journalists are often held in incommunicado detention and conditions that constitute or
give rise to torture, which is expressly prohibited under the Convention Against Torture and other
Cruel, Inhuman and Degrading Treatment or Punishment (CAT), and Article 7 and 10 of the ICCPR.
Arbitrary arrest and detention are also expressly prohibited under Article 9 of the ICCPR.
Article 14 of the ICCPR also provides for fair trials, something which is rarely afforded to Australian
journalists who are detained for political purposes. This Bill provides a protective mechanism to deter
foreign powers from derogating from these rights by engaging in political and opaque prosecutions
and promotes these rights for Australian journalists.
Article 19 of the ICCPR is of particular significance to this Bill as it outlines the right to freedom of
expression, and the freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his
choice. The Bill promotes this right by providing protections for journalists that are detained by a
foreign government due to their political beliefs and ensures they are able to engage, without fear, in
regular journalistic activity.
This Bill therefore enhances existing human rights protections by adhering to Australia's obligations
under the Universal Declaration of Human Rights, the CAT, and the ICCPR by ensuring specific
protections for Australian journalists.
Conclusion
The Bill is compatible with human rights because is advances the protection of the human rights of
Australian journalists.
Circulated by authority of
Mr George Christensen MP