Report on the impact on journalists of section 35P of the asio act

The ASIO Act

Section 18 implemented the recommendation made by the RCIS in relation to dissemination of security intelligence. However, section 18 did, and still does, permit the communication in certain circumstances of ASIO information that is not ‘intelligence relevant to security’. As the Explanatory Memorandum to the ASIO Bill states:

… Because para 17(1)(b) in effect excludes from the functions of the Organization the communication of intelligence for purposes not relevant to security and the Organization may, in the course of performing its ordinary functions, come into possession of information that, while not relevant to security, is relevant to the detection or prevention of serious crimes and other matters, sub-clause (3) provides that, in the limited cases there set out, information may be communicated for non-security purposes.

The reference to legal protection for human sources in the earlier extract from The Spy Catchers refers to section 92 of the ASIO Act, an original provision of the Act. Section 92 made provision in respect of officers and employees of ASIO, as well as ASIO agents—the latter (specifically, human sources) having been the focus of attention in the RCIS. (Put broadly, section 92 now prohibits a person from making public the identity of ASIO employees and ASIO affiliates, and certain other persons associated with them.)

The reference in the same extract to the current penalty being imprisonment for one year is out of date—the Act, which added section 35P to the ASIO Act (post-dating the publication of Spy Catchers), increased the penalty for an offence against section 92 to imprisonment for 10 years.

Of interest in the context of the present inquiry, the Opposition at the time proposed an amendment of clause 92 in the Parliament (which was rejected) along the lines that the required consent of the Attorney-General to any prosecution of a person for an offence against section 92 be provided only where the Attorney-General was satisfied that the actions of the relevant person have, or would be likely to have, the effect of:

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  endangering the physical safety of the officer, employee or agent of the Organisation, or
  
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  seriously prejudicing security.
  

It is crucially important that the abuse or misuse of ASIO power ought to be able to be made public. The language of this clause ought not to be drawn in such a way that it operates in a catch-all fashion, including within its potential ambit a whole variety of forms of disclosure; including the well-motivated, the innocent and the positively beneficial in the interests of the community as a whole, as well as those of a more sinister motivation.

The Government rejected the suggested amendment, principally on the basis that there was no sufficient justification, or apparent precedent, for restricting the matters which the Attorney-General might want to consider in deciding whether to consent to a prosecution.

For completeness, the ASIO Act also contained section 81, a secrecy offence applicable to members and certain staff of the Security Appeals Tribunal (now to the members and certain staff of the Administrative Appeals Tribunal) in connection with the Tribunal’s role in providing independent review of security assessments. Such a provision means that such persons need not be treated as ASIO insiders for section 18 purposes, which may be important to the independence of the relevant tribunal.

The Second Hope Royal Commission

The RCASIA Report referred to earlier discussed the assessment and communication of intelligence. The Commission recommended some reform of section 18 (in particular, of the capacity to communicate incidental intelligence, being an exception to the section 18(2) offence)³⁷.

Section 18 was amended by the Australian Security Intelligence Organization Amendment Act 1986 (No 122 of 1986) to implement these recommendations to some extent. Further amendments have since been made and sections 18(3)-(4B) now provide for and in relation to such communications.

The RCASIA Report makes the following comments (paragraph 17.45) in connection with a recommendation that the Director-General consider acknowledging publicly the identities of more of the senior officers of ASIO.

… Section 92 of the ASIO Act makes it an offence publicly to identify an employee or agent of ASIO or of a person connected with such an employee or agent. There are good security reasons for protecting the identities of some, but not necessarily all, ASIO officers. Corresponding provisions in the Canadian Security Intelligence Service Act (s.18) and the United States Intelligence Identities Protection Act of 1982 are related more clearly to people with an operational need for anonymity.

Appendix I—ASIO public accountability

Freedom of information

Section 3 of the Freedom of Information Act 1982 (FOI Act) relevantly provides that:

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  the objects of the Act are to give the Australian community access to information held by the Government of the Commonwealth by:
  

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  requiring agencies to publish the information
  
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  providing for a right of access to documents, and
  

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  the Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards:
  

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  increasing public participation in Government processes, with a view to promoting better-informed decision-making
  
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  increasing scrutiny, discussion, comment and review of the Government's activities, and
  

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  the Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource, and
  
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  the Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
  

ASIO is an ‘exempt agency’ for the purposes of the FOI Act: see section 7(1) and Division 1 of Part I of Schedule 2.

Other agencies are exempt from the operation of the FOI Act in relation to a document that has originated with, or has been received from, ASIO: see section 7(2A) of the FOI Act.

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