Edward Snowden exposed the unlawful intelligence activities of the US and Australia, but George Brandis wants to make sure it's only whistleblowers like him that face punishment, writes Greg Barns.

This week Attorney-General George Brandis will introduce a raft of new anti-terror laws into the Senate.

According to media reports on the weekend, the bill will contain an increase in the penalty for unauthorised use of intelligence related material from the current two years maximum imprisonment to one of 10 years. Another offence concerning 'illegal' dealings with intelligence material will carry a maximum penalty of 25 years.

The first mentioned provision is being described as an 'Edward Snowden' clause. According to Samantha Maiden writing in Sunday's News Limited papers:

Authorities are concerned that existing offences in Australia for unauthorised communications carry a maximum penalty of only two years. They are also concerned the penalty works against the early arrest of potential offenders. The new offences would boost the deterrents against individuals in the intelligence community misusing or leaking classified material.

Senator Brandis and the security agencies that have devised these new proposals are wrong to do so for three reasons. Firstly, increasing penalties for intelligence dissemination that is unauthorised is likely to have little deterrent impact. Secondly, Senator Brandis does not understand that Edward Snowden's courage in revealing the shocking extent of surveillance and breaches of privacy by the US and its allies, including Australia, has in fact led to some law reform in the area. And finally, it is arguable that a person who reveals illegal activity by government security agencies needs protection in a liberal democratic society.

As to deterrence, one only has to look at Mr Snowden and others, all with different motives - such as Christopher Boyce who in the 1970s leaked out volumes of material about US spying and interference in the domestic politics of other nations, and even the notorious Cambridge spies of 70 years ago (notably Kim Philby, Donald Maclean, Guy Burgess and Anthony Blunt) - to know that these are people for whom the prospect of jail is secondary to acting according to their own moral compass or political ends.

The rational actor theory - the 18th century Enlightenment concept that still dominates criminal justice thinking today and which supposes that human beings as rational actors will be deterred by increased penalties - has never applied to highly motivated, high-risk-taking individuals who work in the world of intelligence.

Senator Brandis wants to prevent an Australian 'Snowden' from emerging. This completely misjudges Mr Snowden's case. What Mr Snowden has done is allow the global citizenry to see that the US and countries such as Australia, the UK and others have been routinely hoovering up personal data from telecommunications and IT companies, spying on foreign leaders, and doing so in a way that is unlawful in many cases.

As the New York Times put it in its New Year's Day editorial this year:

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service.

Mr Snowden's alleged breaches of intelligence confidentiality laws have led to the Obama administration and Congress grappling over reforms designed to prevent the sort of mega data sweeps that security agencies have been undertaking in recent years. The Congress was also forced to defer a cyber-crime bill earlier this year because of Snowden's work.

What Mr Snowden did was expose illegality and undermining of liberal democratic core values like privacy by security agencies. Jason Brennan, a philosopher at Washington's Georgetown University, argues in the case of Mr Snowden, "If governments have authority at all - and it's not clear they do - their authority is sharply delimited. Snowden revealed that the government was doing something it had no authority or legitimacy to do."

There are times when a breach of the law might be undertaken by those who work in the intelligence community because such a breach reveals systemic abuses of power by security agencies. There appears to be no recognition of this fact on the part of Senator Brandis. He appears to be of the view that so outrageous is any breach of laws concerning intelligence disclosure that penalties must be ramped up to reflect that fact.

One would not mind Senator Brandis' proposals if at the same time he provided a public interest defence to those who are charged with these offences. Or if there were greater transparency in the way ASIO and ASIS went about their business by, for example, requiring warrants to be obtained from a judicial officer in all cases.

One hopes the Senate crossbenchers understand better than Senator Brandis the value of the work of Edward Snowden and those who seek to protect ordinary citizens from abuse of power by the intelligence community.

Greg Barns is a spokesman for the Australian Lawyers Alliance and advised the 2013 WikiLeaks Party federal election campaign. View his full profile here.