The basic offence created by section 35P of the ASIO Act is as follows:6
Unauthorised disclosure of information
A person commits an offence if:
the person discloses information; and
the information relates to a special intelligence operation.
Penalty: Imprisonment for 5 years.
Note: Recklessness is the fault element for the circumstance described in paragraph (1)(b)—see section 5.6 of the Criminal Code.
Section 35P(2) comprises an aggravated version of the basic offence, with an express harm requirement.
There is no special definition of ‘information’—it bears its ordinary meaning. According to the Macquarie Dictionary, ‘information’ relevantly means ‘1. Knowledge communicated or received concerning some fact or circumstance; news. 2. Knowledge on various subjects, however acquired’.
Section 4 of the ASIO Act provides that, unless the contrary intention appears:
special intelligence conduct means conduct for or in relation to which a person would, but for section 35K, be subject to civil or criminal liability under a law of the Commonwealth, a State or a Territory.
special intelligence function means a function of the Organisation under paragraph 17(1)(a), (b), (e) or (f)
that is carried out for a purpose relevant to the performance of one or more special intelligence functions; and
that may involve an ASIO employee or an ASIO affiliate in special intelligence conduct.
special intelligence operation authority means an authority to conduct a special intelligence operation granted under section 35C.
Section 17 of the ASIO Act, so far as is relevant, provides:
17 Functions of Organisation
The functions of the Organisation are:
to obtain, correlate and evaluate intelligence relevant to security;
for purposes relevant to security, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes;
…
to obtain within Australia foreign intelligence pursuant to section 27A or 27B of this Act or section 11A, 11B or 11C of the Telecommunications (Interception and Access) Act 1979, and to communicate any such intelligence in accordance with this Act or the Telecommunications (Interception and Access) Act 1979; and
to co-operate with and assist bodies referred to in section 19A in accordance with that section.
There is no special definition of ‘intelligence’—it bears its ordinary meaning. According to the Macquarie Dictionary, ‘intelligence’ relevantly means ‘5. Knowledge of an event, circumstance etc., received or imparted; news; information. 6. The gathering or distribution of information, especially secret information which might prove detrimental to an enemy’.
The meaning of the word ‘intelligence’ as used in the ASIO Act may also be informed by the discussion of such matters in the Royal Commission on Intelligence and Security (RCIS), conducted by Justice Hope between 1974 and 1977.7 The RCIS was the catalyst for the ASIO Act (some significant aspects of the RCIS are discussed in Appendix H of this report). There is also a useful consideration of ASIO ‘intelligence’ and ‘information’ in R v Thomas (No 4) 2008 VSCA 107 (paragraphs 13–22). For present purposes, it is sufficient to say that each of these words has a very broad meaning.
An SIO is an operation carried out for a purpose relevant to the performance of a ‘special intelligence function’. These are the functions in section 17 set out in paragraph 5 above.
A person may commit an offence under section 35P if the person ‘discloses’ information which ‘relates to’ an SIO. The ordinary meaning of ‘disclose’ is to reveal something that is known by the discloser and not previously known to the person to whom the disclosure is made (see Nasr v New South Wales (2007) 70 A Crim R 78 at 106 and the various other cases cited there; see further Ashby v Commonwealth (2012) 203 FCR 440 at [30] and 31], a case which concerned the availability of journalists’ privilege in circumstances where the identity of a confidential source may already have been revealed). The Explanatory Memorandum to the National Security Legislation Amendment Bill (No 1) 2014 (NSLAB (No 1) 2014) says that ‘disclose’ is intended to take its ordinary meaning. However, it indicates that to ‘disclose’ is intended to include the making available of information to others by any means. It says that it is not intended to require, as a rule, proof that the information was received by another person, or that another person read, heard or viewed the information. The Attorney-General’s Department (AGD) and ASIO also submitted to this inquiry that section 35P is intended to apply even to a disclosure of information already in the public domain.
The wide view now taken of the word ‘disclose’ in section 35P is certainly contestable. It would encompass passing on information that the discloser would not know to be true. It would also encompass passing information to a recipient who was already aware of the same information. This is stretching the ordinary meaning. ‘Disclose’ is apt to deal with a communication from an insider with knowledge of an SIO to those with no such knowledge. Wider dissemination would more naturally be captured by words such as ‘communicate’ or ‘publish’. Other ASIO Act provisions refer to the communication (section 18(2)) or publication (section 92) of information, rather than the disclosure of information. The fact that section 35P does not distinguish between ASIO insiders and third parties (including journalists) points in the direction of a narrower meaning. The proper construction of section 35P must await a judicial determination. The result cannot be safely predicted. In the meantime, journalists would assume that the wide official position will guide decisions as to prosecution.
The connecting phrase in section 35P, ‘relates to’, is broad. According to HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 555:
It was common ground that the words ‘relates to’ are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context within which the words are found.
An SIO is a kind of ‘operation’. That term is not defined and would bear its ordinary meaning, in this statutory context. According to the Macquarie Dictionary, ‘operation’ relevantly means ‘1. The act, process or manner of operating… 4. Exertion of force or influence; agency. 5. A process of a practical or mechanical nature in some form of work or production: a delicate operation in watchmaking.… 7. A particular course or process: mental operations… 11. Military, Navy a. the conduct of a campaign. b. a campaign’. In essence, an operation involves activities directed to a particular end.
That which marks out an SIO from other ASIO operations is the authority granted to break the law. The covert nature of an SIO is not a distinguishing feature of it. All ASIO activities carried out for a purpose relevant to a ‘special intelligence function’ as defined involve covert intelligence gathering. The covert involvement of human sources is not a distinguishing feature of an SIO. The method of intelligence gathering and the nature of the authorised illegal activity are not limited by the legislation. The effect of the legislation must be judged by the width of potential operation rather than any subset of it.
An SIO need not be an anti-terrorism operation. As indicated above, it may support other functions of ASIO, including counter-espionage.
