While the oversight of Australia’s intelligence agencies by the IGIS is important, it is not sufficient.
Legislation which authorises ASIO officers to commit crimes and prevents reporting of those crimes is greatly troubling.
Section 35P is unnecessary because existing Commonwealth secrecy offences are adequate.
The basic offence in section 35P(1) should contain an express requirement of harm to the public interest.
It is difficult to know whether information ‘relates to’ an SIO when an SIO could relate to a broad range of ASIO activities:
Information need only ‘relate to’ an SIO in a minor or indirect way.
The capacity to declare an SIO could be open to abuse by the Government.
The section 35P offences are far too broad:
As such, section 35P is beyond the scope of the defence power and inconsistent with the constitutional implied freedom of political communication.
Section 35P is inconsistent with international human rights law including Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
Illegality (including acts not even able to be authorised as part of an SIO) and other substantial wrongdoing ought to be able to be discussed openly.
There is no protection under the Public Interest Disclosure Act 2013 for intelligence agency officers making disclosures to journalists even if these are manifestly in the public interest.
The basic offence may apply (including to journalists) even if no harm eventuates and the disclosure was not intended to cause harm.
To ‘prejudice the effective conduct’ of an SIO may involve the most minor of inconveniences or administrative burdens.
The section 35P offences have no time limits—the risk of prosecution continues in perpetuity.
Section 35P will inhibit discussion relating to ASIO activities generally and for all time, including by journalists and academics.
There is inadequate provision for exceptions, including in relation to information which has already been reported in the international media:
There should be a public interest exception and a defence for information already in the public domain.
The media should have been much more agitated about the introduction of the controlled operations offences in 2010:
The media is now aware of outright restrictions on and increasing difficulties associated with public interest reporting.
Further, the veil of secrecy does not exist in the same way in the controlled operations context as it does regarding intelligence gathering and intelligence operations.
Journalists may unwittingly commit offences and be convicted and jailed.
Fear of prosecution may chill discussion by journalists of matters (including actual or suspected illegal activity) relating to government.
Section 35P will discourage whistleblowers from approaching the media, journalists from pursuing stories and editors from publishing stories.
Section 35P will prevent not only publication of information which ‘relates to’ an SIO but of discussions between journalists and sources and between journalists and editors which concern such information.
A journalist might be unlikely to contact the authorities in the early stages of an investigation because:
the authorities might shut down the story on the basis that it ‘relates to’ an SIO, even if the link is only tenuous, and
that action could prompt surveillance of the journalist or a source.
There is no permitted way by which a journalist can publish information which relates to an SIO.
It is not the duty of the media or the public to keep ASIO operations secret—that duty belongs to ASIO, its partner agencies and officials and MPs to whom it discloses operations.
Section 35P could lead to a situation in which the ordinary activities of ASIO are placed beyond the realms of a journalist’s capacity to report.
Section 35P will trigger the power for ASIO and law enforcement agencies to access journalists’ telecommunications data to identify confidential sources.
A study conducted in the United States shows that journalists’ practices have changed (adopting some aspects of ‘spy’ tradecraft) in response to the empowering of national security agencies.
Many journalists believed that the United States Government had collected their communications data.
Section 35P will deter constructive consultation between security and intelligence agencies and the media.
Whistleblowers will still make disclosures and ‘become martyrs’ and the chances are they may bypass the established media and separately disclose information which has not been responsibly filtered.
The directions given by the CDPP and the Attorney-General in October 2014 in relation to whether a prosecution will be initiated in a particular case is not an effective safeguard or comfort to journalists.
