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



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Privacy


Section 2A of the Privacy Act 1988 (Privacy Act) provides that the objects of the Act are to:

  • promote the protection of the privacy of individuals

  • recognise that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities

  • provide the basis for nationally consistent regulation of privacy and the handling of personal information

  • promote responsible and transparent handling of personal information by entities

  • facilitate an efficient credit reporting system while ensuring that the privacy of individuals is respected

  • facilitate the free flow of information across national borders while ensuring that the privacy of individuals is respected

  • provide a means for individuals to complain about an alleged interference with their privacy, and

  • implement Australia's international obligation in relation to privacy.

ASIO is effectively exempt from the Privacy Act: see section 7(1)(a)(i)(B) and section 7(2)(a) of the Act, together with related definitions.

Ombudsman


The Ombudsman, established by the Ombudsman Act 1976 (Ombudsman Act), investigates complaints about Commonwealth administration and has other functions in relation to Commonwealth administration generally, including in relation to public interest disclosures.

ASIO is effectively exempt from the Ombudsman Act: see the definition of ‘prescribed authority’ in section 3 of the Act, and regulation 4 of, and Schedule 1 to, the Ombudsman Regulations 1977.


The Archives


Section 2A of the Archives Act 1983 (Archives Act) provides that the objects of the Act are:

  • to provide for a National Archives of Australia, whose functions include:

    • identifying the archival resources of the Commonwealth

    • preserving and making publicly available the archival resources of the Commonwealth

    • overseeing Commonwealth record-keeping, by determining standards and providing advice to Commonwealth institutions, and

  • to impose record-keeping obligations in respect of Commonwealth records.

ASIO is the subject of special treatment under the Archives Act: see sections 27–29. Many ASIO records would be ‘exempt records’ (see section 33) for the purposes of the provisions of the Archives Act, which provide for access to Commonwealth records.

Public interest disclosures


The Public Interest Disclosure Act 2013 (PID Act) is a key accountability mechanism given the context of this inquiry—many submissions to the inquiry assert the need for suspected serious wrongdoing by ASIO to be able to be reported, in the public interest.

The aims of the PID Act, set out in section 6, are to:



  • promote the integrity and accountability of the Commonwealth public sector

  • encourage and facilitate the making of public interest disclosures by public officials

  • ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures, and

  • ensure that disclosures by public officials are properly investigated and dealt with.

The PID Act provides for various forms of protection of current and former public officials who make ‘public interest disclosures’. These protections are expressed generally to have effect despite other Commonwealth laws (see section 24) — relevantly including Commonwealth secrecy offences. Section 26 provides for what amount to ‘public interest disclosures’. The requirements attached to making an ‘external disclosure’ include, among other things, that:

  • the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of ‘disclosable conduct’:

    • ‘disclosable conduct’ is defined in section 29 and section 33 provides that, despite section 29, conduct is not ‘disclosable conduct’ if it is:

      • conduct that an intelligence agency engages in in the proper performance of its functions or the proper exercise of its powers, or

      • conduct that a public official who belongs to an intelligence agency engages in for the purposes of the proper performance of its functions or the proper exercise of its powers

  • the information does not consist of, or include, ‘intelligence information’:

    • ‘intelligence information’ is defined broadly in section 41 as (among other things):

      • information that has originated with, or has been received from, an ‘intelligence agency’ (for example, ASIO)

      • information that is about, or that might reveal ‘intelligence agency’ sources, methods or operations

      • information received from a foreign government agency with functions similar to an ‘intelligence agency’ and that is about, or that might reveal, a matter communicated by that authority in confidence

      • ‘sensitive law enforcement information’ (as defined)38

  • none of the conduct with which the disclosure is concerned relates to an ‘intelligence agency’:

    • the section 8 definition of ‘intelligence agency’ includes ASIO.

In relation to ASIO, it follows that a ‘public interest disclosure’ may be made internally (to an ‘authorised internal recipient’ as defined) or to the Inspector-General of Intelligence and Security (see sections 43 and 63 and other provisions relating to an ‘investigative agency’). The PID Act does not provide protection to public officials who make external disclosures that consist of, or include, intelligence information, or that relate to the conduct of an intelligence agency, such as ASIO.39


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