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I am not satisfied that section 35P contains adequate safeguards for protecting the rights of individuals or that it is proportionate to the threat of terrorism or the threat to national security. Furthermore, for reasons discussed in Appendix J, there are arguments of substance that the impact on journalists of section 35P as it stands infringes the constitutional protection of freedom of political communication and is inconsistent with article 19 of the International Covenant on Civil and Political Rights. Three basic flaws need to be addressed. The first is the absence of an express harm requirement for breach (of the basic offence) by a journalist or other third party. The second is that recklessness is the fault element in relation to the circumstance described in section 35P(2)(c)(ii) (that is, in relation to the latter harm requirement in the aggravated offence). The third is the prohibition of disclosure of information already in the public domain.
Harm requirement -
A prohibition applicable to third parties would properly be directed to the risks that are identified in the passages of the Explanatory Memorandum set out in paragraph 40 above and adopted by the PJCIS in its Advisory Report on the National Security Legislation Amendment Bill (No 1) 2014 (paragraph 3.98, extracted in Appendix B) as follows:
The Committee considers that to ensure the success of highly sensitive operations and to protect the identity of individuals involved, it is essential that information on these operations not be disclosed.
These risks are reflected in section 35P(2)(c)(ii), which picks up danger to persons and prejudice to the operation from the disclosure.
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Section 35P should be redrafted to treat insiders and outsiders separately, with one part dealing with third parties and another part dealing with insiders. There should be a basic offence (penalty five years imprisonment) and an aggravated offence (penalty 10 years imprisonment) in relation to both insiders and outsiders.
Insiders
The basic offence and the aggravated offences for insiders would be as per current section 35P.
Outsiders
The basic offence for outsiders would have the same elements as section 35P(1), but with the additional physical element that the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of an SIO. Recklessness would be the default fault element in relation to this last physical element.
The aggravated offence for outsiders would have the same elements as section 35P(2) except that the fault element for (c)(ii) should be knowledge rather than recklessness (in other words, the fault element for the circumstance that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of the operation should be specified to be knowledge).30 This difference in approach in relation to outsiders recognises that outsiders have no direct means of knowledge and generally owe no duty of confidence. In my view, this means that recklessness is not an appropriate fault element for an offence with such a significant penalty. However, this recommended approach adopts the same basic structure as section 35P(2).
Disclosure of information that is in the public domain -
There is no particular reason to distinguish information about SIOs from other information as far as ASIO insiders are concerned. No public domain defence is available and this report does not concern insiders. The position of outsiders such as journalists is different. Imposing criminal liability for republishing something already in the public domain needs to be justified. A broad prohibition in the present terms of section 35P could hardly be justified. There is a strong case for providing a public domain defence for outsiders. Different considerations would apply if section 35P was amended to include a harm element as recommended. Section 92 partly overlaps the substance of section 35P(2)(c)(ii) and the prohibition on publication effected by section 92 will remain. On the one hand, publication of information already published might increase dissemination of the harmful material beyond the initial reach and so cause additional harm. On the other hand, the interference with freedom of expression by a permanent ban on discussion of material in the public domain relating to authorised illegal activity is serious and, in the digital age, almost impossible to police.
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If section 35P is otherwise amended as recommended, it would strike the proper balance to protect journalists (and others) by adopting the substance of the Gibbs Committee recommendation (at 35.1) as follows:
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There should be a defence of prior publication (not available to a member or ex-member of the intelligence and security services in respect of information available to him or her in that capacity), which would require the defendant to satisfy the court:
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that the information in question had previously been published
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that, having regard to the nature and extent of that prior publication and the place where it occurred, the defendant had reasonable grounds to believe that the second publication was not damaging, and
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the defendant was not in any way directly or indirectly involved in the prior publication.
Disclosure of modus operandi -
Disclosure of an operational capability, method or plan of ASIO (compare section 34ZS) has the potential to harm ASIO operations. This harm was not relied on to justify section 35P in the critical part of the Explanatory Memorandum to the National Security Legislation Amendment Bill (No 1) 2014 or by the PJCIS. It is not reflected in the aggravated offence in section 35P(2) beyond the effect on the SIO in question.31 The broad prohibition of external disclosure of information by ASIO insiders, by administrative means including contract and by legislation,32 is the frontline protection against this harm. This was the situation until section 35P came into force. The introduction of the SIO scheme, authorising illegal behaviour, is not a convincing justification for now prohibiting in the same manner third party publication of such information. This class of harm would cast a wide net of uncertain dimension. If a different view prevailed, the fact that much about the operational capabilities, methods and plans of intelligence organisations (including ASIO) is in the public domain would need to be taken into account, and an appropriate defence would need to be provided.
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