Introduction

The Independent National Security Legislation Monitor (INSLM) this week has recommended changes to the operation of section 35P of the ASIO Act[1] which was introduced in 2014 and created criminal offences carrying sentences of up to 10 years imprisonment for persons who disclosed information that “relates to a special intelligence operation [“SIO”[2]]”. (See excerpts of the section below).

The legislation has provoked considerable criticism, particularly amongst media organisations, being described as an “outrageous attack on press freedom”, and as muzzling the media doing its job.[3] On the other hand, the responsible Minister viewed the section as simply part of the “most important single reform to the powers of ASIO in a generation”[4], under which there would be “no foreseeable possibility of prosecution of a reporter”.[5]

Against this background, s 35P was referred to the INSLM in order to assess its possible impact on journalists.

The INSLM’s report was tabled in Parliament and made publicly available this week, having been provided to the former Prime Minister in October 2015.[6]

Overview of INSLM report

Roger Gyles QC, Australia’s current INSLM, considered that the operation of s 35P was “arguably invalid” for infringing the Constitutional protection of freedom of political communication; as well as “arguably inconsistent” with article 19 of the International Covenant on Civil and Political Rights (ICCPR). His reasons for this included:

  • The very wide scope of s 35P[7] (prohibiting disclosure of “information [that] relates to a SIO”, even if already in the public domain) was sought to be justified based on the rationale that harm would be implicit in any disclosure about an SIO at any time (and by anyone). The INSLM found this was “simply not sustainable”.[8]
  • The fact that it was open for any person to commit both offences in the absence of any knowledge that the information disclosed was related in any way to an SIO.[9] The INSLM agreed that reporting on ASIO activities under s 35P was “something of a lottery”.[10]
  • That s 35P applied indiscriminately to all persons, failing to discriminate between ASIO ‘insiders’ (e.g. employees of and contractors to ASIO who may have knowledge about SIOs and owe confidentiality obligations); and ASIO ‘outsiders’, including journalists and other third parties, who do not. Prior legislative restrictions on communication of information had distinguished between insiders and outsiders.

Following these conclusions, the key question for the INSLM amounted to whether a secrecy provision for SIOs could be crafted that on the one hand protects national security interests in a proportionate manner and on the other imposes the least restrictive means needed to achieve its protective function.[11]

The INSLM considered, and rejected, proposals for a public interest defence applying to journalists. Instead, the INSLM has suggested amending s 35P[12] as follows:

Incorporating a distinction between insiders and outsiders into s 35P

This is to be done by retaining the current s 35P text for ‘insiders’ (such as ASIO personnel); but adding an additional requirement before liability can be established for ‘outsiders’ (including the media), being that the disclosure of information will endanger the health or safety of any person or prejudice the effective conduct of an SIO. As a result of these changes, a person disclosing information would be liable to imprisonment only if they know that this will occur.[13]

Establishing a defence of prior publication

A defendant who successfully establishes that: the information in question had previously been published; that they had reasonable grounds to believe that the subsequent publication was not damaging; and that they were not involved in the prior publication; would escape liability.

The government has indicated it will accept the INSLM recommendations.[14]

Points of interests for journalists and media organisations

In effect, the INSLM’s preferred solution to what it admits are problems with s 35P is to add further stumbling blocks to the path of a potential s 35P conviction of an ‘outsider’. However, identified problems with s 35P – such as the marked breadth of “relates to” an SIO, are not directly addressed.

As well, and intriguingly for a referral that was focused on s 35P’s impact on journalists, the INSLM has recommended amendments that affect the more general group of ‘outsiders’[15] (albeit journalists are a subset of this larger group). Journalists may obtain some additional protection from Directions previously issued to the Commonwealth Director of Public Prosecutions, in response to concern expressed from media organisations, which require prosecutors to seek leave before proceeding against journalists for s 35P offences. It was these Directions which were relied on by the responsible Minister to assert that there would be “no foreseeable possibility of prosecution of a reporter”. Given the broadly focused amendments recommended, it appears that the INSLM did not consider a journalist-focused public interest exception to be necessary.

Finally, the recommendation to continue with an admittedly more dilute s 35P appears to rest on the view that a secrecy regime concerning SIOs is “not inappropriate”. [16]

Section 35P, as enacted, provided for what the INSLM refers to as the “basic offence” (penalty of up to 5 years’ imprisonment), with the most relevant portions as follows:

  1. (1) A person commits an offence if:
    1. the person discloses information; and
    2. the information relates to a special intelligence operation

It also created a similar “aggravated offence” (penalty of up to 10 years’ imprisonment) including the following elements:

2. A person commits an offence if:

  1. the person discloses information; and
  2. the information relates to a special intelligence operation; and
  3. either:

 

  1. the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; or
  2. the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation