Legislative Council: Wednesday, September 28, 2022


Assange, Mr J.

Adjourned debate on motion of Hon. F. Pangallo:

That this council—

1. Recognises Julian Assange is an Australian citizen and a journalist with WikiLeaks who aided in exposing possible war crimes and civilian casualties in the release of documents which included Afghanistan War logs in 2010 and Guantanamo Bay files in 2011, supplied to WikiLeaks by Chelsea Manning, a former U.S. Army intelligence analyst.

2. Acknowledges Mr Assange genuinely believed his actions were for the purpose of:

(a) government accountability, transparency and integrity; and

(b) the broader public interest and for the interest of justice.

3. Notes that since the publication of those documents, Mr Assange has been forced into isolation or imprisoned over the course of 10 years, resulting in the serious deterioration of his health and mental wellbeing.

4. Recognises Mr Assange’s impending prosecution by the United States of America constitutes a serious attack on the fundamental democratic freedoms of the press.

5. Questions the legitimacy of prosecuting Mr Assange in the United States through that country’s Espionage Act of 1917, carrying a penalty of up to 175 years imprisonment; and whether the act should be applied to non-US citizens either living and/or working in other countries, at the time of any alleged offending.

6. Calls on the President of the Legislative Council to write to:

(a) the President of the United States, Joe Biden, expressing the Legislative Council’s desire that he show clemency by intervening in the extradition and prosecution of Mr Assange; and instruct the US Attorney-General and US Department of Justice to withdraw all charges on medical and humanitarian grounds;

(b) the Prime Minister of Australia, the Rt Hon. Anthony Albanese, and Minister for Foreign Affairs, Hon. Senator Penny Wong, requesting they write to the President of the United States and the US Ambassador to Australia, Ms Caroline Kennedy, to express the concerns of the Legislative Council regarding Mr Assange’s prosecution.

7. Notes a poll conducted by the Sydney Morning Herald in January 2022 which showed 71 per cent support for Mr Assange being returned to Australia.

(Continued from 7 July 2022.)

The Hon. R.B. MARTIN (17:29): The state government notes that Julian Assange is seeking to appeal the UK Home Secretary's decision to extradite him to the United States. However, the government will not be supporting this motion. It should be noted that the Australian government has been clear in its view that Mr Assange's case has dragged on for too long and that it should be brought to a close. The South Australian government understands that the federal government will continue to express this view to the governments of the United Kingdom and the United States.

The South Australian government understands that the Department of Foreign Affairs and Trade will continue to offer consular assistance to Mr Assange, noting that Australia is not a party to Mr Assange's case and nor can the Australian government intervene in the legal matters of another country. It is certainly the case that the federal government will continue to convey expectations that Mr Assange is entitled to due process, humane and fair treatment, access to proper medical care and access to his legal team.

The Hon. J.M.A. LENSINK (17:30): I rise to place on the record some comments in relation to this motion. We follow the same position as our federal colleagues, so I note the comments of the Hon. Simon Birmingham, shadow minister for foreign affairs, who has made the following comments already:

The Australian Government will continue to monitor Mr Assange's case closely, as it would for any Australian citizen in detention overseas. However, beyond providing consular assistance, it is important to note that Australia has no standing in Mr Assange's legal proceedings and is unable to intervene.

Whilst there is a crucial role for whistle-blowers and free speech, there are also instances of importance where sensitive information is kept secure, including to protect the lives of others.

I appreciate that some members of the public feel very strongly about Mr Assange's situation, nevertheless I believe that Australia should respect the rule of law in countries like the UK and the US.

Therefore, the Liberal Party will not be supporting this motion.

There being a disturbance in the gallery:

The PRESIDENT: Members of the gallery will remain silent, or they will be removed.

The Hon. T.A. FRANKS (17:31): I rise to speak briefly in support of this motion. I note, for those here in the council and those who may pay attention to either Hansard or the broadcast of these proceedings, that this motion does several things.

Firstly, it recognises that Julian Assange is an Australian citizen and a journalist with WikiLeaks who aided in exposing possible war crimes and civilian casualties in the release of documents, which of course included Afghanistan War logs in 2010 and Guantanamo Bay files in 2011 that were supplied to WikiLeaks by Chelsea Manning, a former US Army intelligence analyst.

It also acknowledges that Mr Assange genuinely believed his actions were for the purpose of government accountability, transparency and integrity and for the broader public interest and the interest of justice. It also notes that, since the publication of these documents, he has been forced into isolation or imprisonment over the course of 10 years, which has resulted in the serious deterioration of his health and his mental wellbeing.

The motion recognises that Mr Assange's impending prosecution by the United States of America does actually constitute a serious attack on the fundamental democratic freedoms of the press. It questions the legitimacy of prosecuting Mr Assange in the United States through that country's Espionage Act of 1917, carrying a penalty of up to 175 years of imprisonment. It also questions the legitimacy of whether that act should be applied to non-US citizens living and working in other countries at the time of any alleged offending—indeed, the legitimacy of an American espionage act applying to every other citizen of the globe. It is extraordinary.

The motion also calls on the President of the Legislative Council, this place, to write—write a letter or an email—to the President of the United States, currently Joe Biden, expressing the Legislative Council's (that is us, elected members of the South Australian parliament) desire that he, as President, show clemency by intervening in the extradition and prosecution of Mr Assange and instruct the US Attorney-General and the US Department of Justice to withdraw all charges, on medical and humanitarian grounds.

It also instructs the President of the Legislative Council to write to the Prime Minister of Australia, the Rt Hon. Anthony Albanese, and the Minister for Foreign Affairs, the Hon. Senator Penny Wong, requesting that they write to the President of the United States, as well as also communicating with the US Ambassador, Ms Caroline Kennedy, to express the concerns of this Legislative Council, should this motion pass, regarding Mr Assange's prosecution. Further, it notes that a poll conducted by the Sydney Morning Herald in January this year showed 71 per cent of people supported Mr Assange being returned to Australia.

I start by noting that just last year the then opposition leader, Anthony Albanese, now Prime Minister, at the time called for Julian Assange's urgent release from jail. He said he cannot see what is served by keeping him incarcerated. The Greens could not agree more, yet sadly he cannot agree with his own words, with deeds to follow them up once he is in a position to do so.

As the director of WikiLeaks, Julian Assange received information from sources, and he published that information online. By doing so, he exposed the war crimes of the United States to the world. The crimes here are the war crimes of the United States that were exposed to the world. That is the criminal behaviour. What is not the criminal behaviour is the journalism. If the United States is allowed to pursue charges against Julian Assange, it will have devastating consequences on the freedom of speech and the freedom of the press not just here in Australia, not just in America, but across the globe. We have a responsibility to do all we can to ensure that that does not happen.

It is clear that there is widespread public support for Julian Assange to be returned to Australia. Across the nation, thousands of people continue to organise and rally to bring him home. My Greens colleagues, such as Senator Janet Rice, Senator Peter Whish-Wilson, Senator Jordon Steele-John and Senator David Shoebridge, have all been tireless in their advocacy for Julian Assange in the federal parliament, and I note that previous Senator Scott Ludlam certainly was similarly staunch in his work on this issue and continues to be.

Unfortunately, though, now that Mr Albanese is Prime Minister he seems to have fallen silent. He has claimed that he does not wish to exercise megaphone politics and, while I am not averse to holding a megaphone, if that is his imperative that is fair enough. If that is his style, that is fair enough. What is not fair enough is for him not even to pick up the phone or put out a press release once he is Prime Minister to reaffirm the views that the people of Australia voted for, thinking he believed and would take them from opposition to his role as Prime Minister.

He must get on the phone and tell President Joe Biden in no uncertain terms that the US must end this abuse of power and drop the charges against Julian Assange, but so far we have seen no action. Perhaps there has been some, but we have certainly seen none. I have to say that silence has been the great weapon in this now over 10-year debate. In fact, the government's official response now is that they have 'noted' the extradition order and that they would like to see his case 'brought to a close'. Well, so would we all. However, with silence that close does not draw closer; it gets further away.

The deeply troubling conclusion is that their intention to bring it to a close by doing nothing or being silent does nothing to prevent the charging, prosecution and potential conviction in a US court of Julian Assange and, as I say, it does nothing to prevent him potentially being sentenced for up to 175 years in jail, for the crime of telling the truth, of reporting the truth, for the supposed crime of espionage for reporting on a war crime. I can see who the real criminals here are and they certainly are not Julian Assange.

Julian has spent the last three years in maximum security in Belmarsh prison in the United Kingdom, and if he is convicted he will potentially spend the rest of his life in solitary confinement. All the evidence indicates that his health has deteriorated from the years of arbitrary detention that he has been forced to endure.

No less than the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has concluded that 'in addition to physical ailments, Mr Assange showed all symptoms typical for prolonged exposure to psychological torture, including extreme stress, chronic anxiety and intense psychological trauma'. That was obviously also picked up most recently by the UK magistrate in the High Court, who accepted the expert testimony that if his extradition to the US were to become imminent, he would have the urge to take his own life.

Julian Assange cannot be left to die because our leaders think it is politically expedient to allow our so-called allies to exact revenge on a journalist who exposed their war crimes. It is as simple as that. We must intervene immediately and decisively to end this injustice. Writing a few letters or emails seems the least we can do as the elected representatives of the people of this state.

As WikiLeaks wrote in their statement responding to the extradition news, Julian Assange's freedom is coupled to all our freedoms. The Greens will always support a journalist's right to speak truth to power, and we will always continue the fight to bring Julian home. Indeed, I wish a few more people in power were willing to not just speak the truth but protect the truth.

The Hon. C. BONAROS (17:41): I rise today to speak briefly to my colleague's motion in support of the intervention to bring Julian Assange home, and also acknowledge the Greens' work in this space, both at a state and of course a federal level.

I want to take this opportunity to acknowledge Mr David McBride, who is here with us today. He is a former ADF lawyer and captain of Britain's elite Special Air Service who, in 2011 and 2013, served in Afghanistan as a military lawyer to the Royal Australian Regiment and the Australian Special Forces respectively.

Some in this place may know Mr McBride for his courageous act in speaking an inconvenient truth about war crimes committed by members of Australia's Special Operations Taskforce group in Afghanistan from 2011 to 2013. In 2014, Mr McBride reported his findings through the chain of command to no avail, after having seen the rule of law and rules of law being pushed to one side. In an act of courage he offered his findings to a journalist at the ABC in 2016, the material now known as 'the Afghan files'.

He is now looking down the barrel of a secret federal prosecution for the act of reporting a crime. It sounds counterintuitive to say those words, but that is, plain and simple, what is happening to Mr McBride. It should never be a crime to report a crime, yet here we are and here Mr McBride stands—just like Mr Assange. David stands tall in the face of a 50-year prison sentence if convicted for blowing the whistle on the ADF, having been charged in 2018.

Perhaps the greatest injustice is that despite the 2020 Brereton report, which published allegations of ADF involvement in cruelty and 39 unlawful killings in Afghanistan, he is the only one to be prosecuted, and remains the only one to be prosecuted—the only one, despite those acts of cruelty and unlawful killings.

In 2021, a Senate inquiry report into the freedom of the press found that the Director of Public Prosecutions 'urgently reconsider, on strong public interest grounds' whether to continue the prosecution of Mr McBride. The press freedoms inquiry made a total of 17 recommendations, with Nos 7 and 8 involving a recommendation that would require a prosecution to establish unauthorised disclosure was not in the public interest rather than the onus be upon journalist defendants to establish that it was.

The public interest is at the heart of this motion. We have already seen the Attorney-General withdraw the prosecution of Bernard Collaery, citing that to do so is in the national interests and the proper administration of justice. Just like Bernard Collaery's case, the prosecution of Mr McBride represents a clear instance where the injustice of the prosecutions is strong and is clear justification for the Attorney to again use his discretion under the relevant legislation to discontinue its prosecution.

David's show of courage to take the step to defend our most sacred of values—freedom of speech, free press and the protection of human rights—and to hold to account an institution as powerful as the Australian government, also exemplifies right from wrong, and the power of standing up for what is right—the same, precisely the same as what Mr Assange has done. In David's own words, 'If not me, who? If not now, when?'

David takes pride in being a beacon of hope that fundamental reforms to whistleblowing reform are on the horizon. The Australian government is using the catch-all cry of national security to take away the public's right to know what our government is doing, and to remove their accountability to the people who elect them. Julian Assange is the example of what can and will happen to people who uncover or discover criminal behaviour in the depths of government administration.

Perhaps, like many of you, people have differing views about Mr Assange and this issue but, as was pointed out today, I think it is important to remember that this is not about the individual, this is about the principle and what we will allow or not allow to happen to Australians. We are seeing how governments will behave to ensure that the right to speak to the truth, to its corrupt, harmful and unethical conduct, are silenced and that the hardline prosecutions of whistleblowers, like Julian Assange, like David McBride and like Richard Boyle, are a result of speaking out.

I said earlier today that it strikes me as ironic that in this place we would be in a position to table and speak to the same documents leaked by Mr McBride or Mr Assange with immunity under privilege for the purposes of advancing a complaint into a wrongdoing, and assessing if an investigation is appropriate but, meanwhile, people like Mr McBride face 50 years for doing so outside of these walls for reporting to journalists in the name of public interest.

Like Julian Assange, David is being held to a criminal standard for the crime of reporting a crime, and the prosecution of the evidence will be done in the dark behind the thin veneer of national security. This is where democracy dies in darkness. We should be speaking up and we should be loud and clear that reporting crime should not be a crime.

To suggest that I am disappointed with the position of both major parties today is an understatement. What we have seen today are two major parties that do not have the backbone, that do not have the same courage as Mr McBride and Mr Assange, that do not have the intestinal fortitude of people like Mr McBride and Mr Assange, who have demonstrated that they will do what is right for the public good, and that the rights and liberties of Australians will stand first and foremost in terms of their actions.

As Tammy Franks has stated, they do not have the courage to tell the truth. That is an indictment on all politicians in this place who will not stand up for these individuals. In terms of where our political parties sit, and where the Labor Party sits on this issue, it is all well and good to say one thing in opposition and then, when your turn comes to shine and to do the right thing, you lie. You lie to voters as a result because there are many voters who would have supported you on the basis that that is what they thought you would do if you came into power. It is that plain and that simple.

Mr McBride has said publicly that he is not afraid of going to jail, but what he cannot and should not have to tolerate—like Mr Assange, Mr Boyle and others—is having his name, and his very good name, his career and his reputation smeared and dragged through the mud for telling the truth. None of us can begin to appreciate the effects that this would have had on those individuals, on Mr McBride, on his life, on his family's life and on the lives of his loved ones.

These things do not happen over a number of days. Anyone who has been the subject of any secret trial or investigation or inquiry ought to know that these drag on for years. They are destructive and they are soul-destroying. They impact each and every aspect of your life and they make it extraordinarily difficult. You become the victim of something that you are not responsible for. You become the victim of telling the truth. That, in my mind, is completely and utterly unacceptable.

I will end by saying, in terms of my other profession, that I think it is important to note that, as lawyers, we take oaths and we swear to uphold the rule of law and to conduct ourselves in a way that is consistent with those laws, without fear or favour. As lawyers, we have professional responsibilities that go above and beyond the responsibilities that apply to other members of the community.

When you raise issues, crimes or whatever the case may be, and you take those to your superiors and you try, in vain, to get some responses from them but you can see that nothing is being done with the information that is provided to them, then there really is little other option than for you to think about whether or not it is appropriate, whether it is in the public interest, in the public good, to disclose that information—to disclose information that pertains to criminal acts of violence—in the name of accountability and transparency. You do so not only because you do not want to be part of the cover-ups but also because you know that you have a duty and a responsibility to do just that.

As I said, I am extremely disappointed with the stance of both major parties. If one thing can be said today, it is that this is the first time this motion has been put up in South Australia. I suspect, knowing my colleagues, that it will not be the end. I suspect, knowing the fierce advocates who have supported Mr Assange, and others like Mr McBride, this will not be the end and we can expect to see the same until those injustices are corrected.

The Hon. F. PANGALLO (17:53): I would like to thank the honourable members who made contributions today—the Hon. Reggie Martin, the Hon. Michelle Lensink and in particular the Hon. Tammy Franks and my colleague the Hon. Connie Bonaros—for their impassioned words of support and the way they have articulated what the issue is here and what is at stake. I thank them for their contributions today and also thank the Greens federally.

To say I am disappointed in what I have heard today from Labor and the Liberals is an understatement. I am actually disgusted—absolutely disgusted. It is just a pity that they have not channelled the spirit of the late Hon. Terry Cameron, who was commemorated today, because Mr Cameron was a member who stood on his principles and what he thought was in the best public interest. This is all about public interest journalism.

The Liberals' spineless position does not really surprise me. We have seen their indifference to other Australians who have been wrongfully detained, going back to David Hicks, who was held in Guantanamo Bay, and Kylie Moore-Gilbert, held in an Iranian prison for 800 days. Had it not been for the constant pressure from the media, who knows what her fate would have been. Right now in China, journalist Cheng Lei is being held, and we do not why she was arrested or why she has been detained, and the overtures from the Australian government, past and current, are really hollow.

We are also witnessing swift about turns from the Malinauskas government compared to their words when in opposition, or even to the very principles on which the labour movement was founded. We are seeing state Labor kowtow to orders of their federal masters, those in South Australia—Senator Don Farrell and Senator Penny Wong, the foreign minister—just as they did with other motions moved in this house. If it did not fit with the position of the foreign policies of the new Albanese government, 'Don't go there, don't upset us, don't embarrass us. Don't worry about the principle, just don't embarrass us.'

The Prime Minister and the foreign minister, unfortunately—and I was surprised that I would see this so early in the piece—are now behaving like lap dogs to the United States instead of standing up for human rights, the rights of an Australian being extradited for exposing corrupt conduct by the United States, instead of standing up for his democratic human rights, for freedom of speech, freedom of the media. They are happy for Mr Assange to be the convenient scapegoat, to be punished for exposing heinous crimes of murder, for doing what any journalist would be expected to do: tell the truth, expose corrupt conduct, demand transparency, report without fear or favour.

Sadly and shamefully, even my own profession is not prepared to stand up for one of their own in this country. They are reluctant to challenge our government and call out the US for what it is trying to do. The hypocrisy from the Albanese regime, the arrogance of the Biden administration, is so deafening that it is chilling. They will call out war crimes and atrocities committed by Vladimir Putin's army in the Ukraine, but when the spotlight is turned on Australia or the US for their war crimes, it is deathly silence and inaction.

I will hail Julian Assange as a hero of the fourth estate, a man who had the courage to blow the whistle on egregious conduct by a nation that is actually built on liberty. It is even enshrined in their constitution. It is outrageous that the United States can wield such significant influence on its allies that it feels it is justified in pursuing foreign nationals anywhere in the world under one of its own laws, the Espionage Act, which we do not even recognise here.

I want to thank the organisers of a rally supporting Mr Assange at parliament house today, led by Jodie Sard, who may be here today and I acknowledge her, and also the speakers who spoke so passionately about the injustice to Mr Assange. As my colleague has pointed out, David McBride is probably one of the most courageous people I have met, who is prepared to go to jail for a long time for doing what Mr Assange did: blow the whistle on war crimes by Australians in Afghanistan.

Other speakers included lawyer Stephen Kenny—an acclaimed human rights activist who is representing Mr Assange—the Hon. Tammy Franks and former Senator Rex Patrick. These are tireless campaigners for government transparency and the wrongful pursuit and persecution of whistleblowers. And of course, my colleague the Hon. Connie Bonaros.

I am actually going to ask for a division here today, so Australians will know which members have little conscience for an Australian being wrongfully detained and the lack of support for the principles of free speech, a free press—the foundations of our democracy. Journalism is not a crime.

The council divided on the motion:

Ayes 5

Noes 12

Majority 7


Bonaros, C. Franks, T.A. Game, S.L.
Pangallo, F. (teller) Simms, R.A.


Bourke, E.S. Centofanti, N.J. Curran, L.A.
Hanson, J.E. Hunter, I.K. Lee, J.S.
Lensink, J.M.A. Maher, K.J. Martin, R.B. (teller)
Ngo, T.T. Scriven, C.M. Wortley, R.P.

Motion thus negatived.