A public interest defence? -
A public interest defence in various forms for journalists (and others) was proposed by many, but opposed by ASIO. Such a defence was recommended by the Commission of Inquiry into ASIS but not by the Gibbs Committee or the ALRC.
-
This report deals with limited aspects of the operations of ASIO—it would not be appropriate to depart from the broad prohibition of external disclosure by ASIO insiders in these circumstances. However, the treatment of outsiders requires close examination.
-
A more closely targeted prohibition such as that recommended might still, to some extent, inhibit the exposure of wrongdoing or other aspects of the public interest in relation to an SIO. An example would be complaints about the conduct of the SIO or those involved in the SIO. ASIO and its operations have previously been carefully excluded from, or subjected to limited, public scrutiny.33 External scrutiny of ASIO operations was most recently considered by the Parliament in relation to the Public Interest Disclosure Act 2013. The prohibition of external disclosure of intelligence information by insiders was maintained. Criticism was answered by pointing out that the IGIS has the function of dealing with complaints (from any source) concerning intelligence agencies and intelligence information. That would include complaints relating to an SIO. A number of submissions to this inquiry did not see that remedy as a satisfactory solution. In particular, the IGIS is seen by some as part of the security and intelligence establishment, as having limited functions and resources and bound to maintain secrecy.34
-
There is a case for a public interest defence for journalists (and others) as section 35P currently stands, notwithstanding the difficulty for the prosecution of establishing recklessness and the discretions of the Attorney-General and the CDPP in relation to prosecutions, as discussed earlier. The addition of the recommended element of harm to the basic offence changes the equation. The publication of harmful material would be properly prohibited. Any special circumstances can be taken into account in decision making by the Attorney-General and the CDPP (and, potentially, in relation to sentencing). The judiciary should not lightly be involved in binding value judgments about issues of national security. The case for doing so is not sufficient if section 35P is amended as recommended.
A lack of knowledge defence? -
The Gibbs Committee recommended:
-
It should be a defence for a person charged with an offence under the proposed provisions where proof of damage is required that he or she did not know and had no reasonable cause to believe that the information related to the matters in question or that its disclosure would be damaging.
Such a defence should not be necessary where the onus is on the prosecution to establish recklessness in relation to relevant matters.
Sunset provision -
If the recommended amendments are adopted there should be no need for a sunset clause. Further experience of section 35P will continue to be subject to INSLM review.
Conclusion -
If these recommendations are implemented, an SIO would be protected by wider secrecy provisions than other covert ASIO operations. However, freedom of expression would be inhibited only to a reasonable minimum—proportionate to the threat, including of terrorism, to national security and consistent with constitutional imperatives and Australia’s international human rights obligations. There would also be appropriate safeguards for protecting the rights of individuals.
Appendix A—List of contributors to the inquiry
The inquiry received public submissions35 from (in order of receipt):
-
Seven West Media (Seven Network, Pacific Magazines, Yahoo!7 and the West Australian and other Western Australian newspapers and radio stations)/Addisons Lawyers, for Seven West Media
-
National tertiary Education Union
-
Gilbert + Tobin Centre of Public Law, University of New South Wales
-
Professor Emeritus Clive Walker, University of Leeds
-
Professor Jason Sharman, Griffith University
-
Professor Rick Sarre, University of South Australia
-
Civil Liberties Australia
-
Attorney-General’s Department and the Australian Security Intelligence Organisation (including in response to requests for information)
-
Dr Matt Collins QC
-
Senator Nick Xenophon and Dr Clinton Fernandes, University of New South Wales at the Australian Defence Force Academy
-
Marque Lawyers
-
Bar Association of Queensland
-
Law Council of Australia
-
Australian Lawyers for Human Rights
-
Acting Professor Margaret Simons and Gary Dickson, Centre for Advancing Journalism, University of Melbourne
-
Amnesty International
-
Professor Russell Trood and Kate Grayson, Griffith University
-
Commonwealth Director of Public Prosecutions (including in response to requests for information)
-
Human Rights Watch
-
Chris Berg and Simon Breheny, Institute of Public Affairs
-
Australian Federal Police, in response to a request for information
-
Councils for Civil Liberties (Australian, New South Wales, Victorian, Queensland and South Australian)
-
Australian Human Rights Commission
-
Joint Media Organisations (AAP, ABC, APN News & Media, Australian Subscription Television and Radio Association, Bauer Media, Commercial Radio Australia, Fairfax Media, Free TV, Media Entertainment and Arts Alliance, News Corp Australia, SBS, SkyNews, The Newspaper Works and the West Australian)
-
New South Wales Bar Association
-
Guardian Australia
-
Tasmanian Government, in response to a request for information
-
Law Society of New South Wales
-
Premier of Queensland, in response to a request for information
-
Chief Minister, Northern Territory Government, in response to a request for information
-
Premier of South Australia, in response to a request for information
-
Faculty of Law, Bond University
-
Inspector-General of Intelligence and Security
-
Victorian Government, in response to a request for information
-
Humanist Society of Victoria
-
New South Wales Government, in response to a request for information
-
Chief Minister, Australian Capital Territory, in response to a request for information.
The INSLM held public hearings on 27 and 28 April 2015 and met with the following people and groups:
-
Joint Media Organisations
-
Adam Suckling, Director—Policy, Corporate Affairs and Community Relations, News Corp Australia
-
Campbell Reid, Group Editorial Director, News Corp Australia
-
Paul Murphy, CEO, Media Entertainment and Arts Alliance
-
Georgia-Kate Schubert, Head of Police and Government Affairs, News Corp Australia
-
Bridget Fair, Group Chief, Corporate and Regulatory Affairs Seven West Media
-
Senator Nick Xenophon
-
Dr Clinton Fernandes, University of New South Wales at the Australian Defence Force Academy
-
Law Council of Australia
-
Stephen Keim SC, National Human Rights Committee
-
Matthew Dunn, Director of Policy
-
Dr Natasha Molt, Senior Policy Adviser
-
Michael Bradley, Managing Partner, Marque Lawyers
-
Laura Thomas, Human Rights Watch Australia Committee
-
Dr Lesley Lynch, for Councils for Civil Liberties
-
Civil Liberties Australia
-
Dr Kristine Klugman, President
-
Bill Rowlings, CEO
-
Dr Paul Kniest, Policy and Research Coordinator, National Tertiary Education Union
-
Gilbert + Tobin Centre of Public Law (via teleconference)
-
Professor George Williams AO
-
Dr Keiran Hardy
-
Attorney-General’s Department
-
Jamie Lowe, First Assistant Secretary, National Security Law and Policy Division
-
Julie Taylor, acting National Security Legal Adviser
-
Australian Federal Police
-
Acting Commissioner, Michael Phelan
-
Commander Peter Crozier, performing duties of National Manager Counter Terrorism
-
Australian Security Intelligence Organisation
-
Duncan Lewis AO DSC CSC, Director-General of Security
-
Kerri Hartland, Deputy Director-General
-
Commonwealth Director of Public Prosecutions
-
Scott Bruckard, Deputy Director, Organised Crime and Counter-Terrorism
-
Stefanie Cordina, Principal Federal Prosecutor, Organised Crime and Counter-Terrorism.
The INSLM also held private hearings with the:
-
Australian Security Intelligence Organisation
-
Australian Federal Police
-
Commonwealth Director of Public Prosecutions
-
Inspector-General of Intelligence and Security.
Share with your friends: |
