Thematic suggestions -
Section 35P as a whole should be repealed (this was suggested in several submissions).
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The basic offence in section 35P(1) should be repealed (this was suggested in quite a large number of submissions).
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A public interest defence to the offences should be provided (this was suggested in quite a large number of submissions).
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This could be limited to circumstances where illegality, substantial misconduct or other forms of impropriety are involved.
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There should be a defence available in relation to disclosure of information which is already in the public domain.
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Disclosures to Federal and State Members of Parliament should be protected when a citizen has concerns about the legality or appropriateness of a security operation.
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The exception in relation to legal advice should extend to legal advice about the subject of the offence (the disclosure or proposed disclosure).
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The basic offence in section 35P(1) should be amended to include an express requirement of harm, like section 35P(2).
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The offences should be defined with more precision—the words ‘relates to’ are too broad.
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The offences should have a specified duration.
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Section 35P(2) should be reviewed and restructured.
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The offences should be limited to circumstances where a person intends to harm the public interest:
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Alternatively, the penalties should be adjusted to reflect the fact that unintended harm is less serious.
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The fault element of knowledge should replace the fault element of recklessness (as to the physical element involving that the information relates to an SIO).
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Journalists should be exempted from the offences:
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In this context, defining ‘journalist’ might be problematical and such differential treatment might be objectionable in principle.
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Existing and any future safeguards of freedom of expression applicable in relation to journalists should also be extended to the academic profession acting in that capacity.
Specific proposed suggestions (proposed draft provisions) Seven West Media
A new paragraph of section 35P(3) would provide that the offences do not apply if the disclosure was:
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made in good faith in a report or commentary published about a matter of public interest by a person engaged in a professional capacity as a journalist, where the report or commentary does not disclose, directly or by inference, the identity of a security officer.
This would be followed by a new subsection along the following lines:
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Without limiting the generality of [the new paragraph], a disclosure is about a matter of public interest for the purposes of [the new paragraph] if it is or relates to:
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a matter that increases the ability of the public to scrutinise issues of national security, including security activities or Government policy
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a matter that contributes to the public debate on national security matters or related issues
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conduct that, but for the provisions of this Act:
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contravenes a law of the Commonwealth, a State or a Territory
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contravenes a law of a foreign country
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perverts, or is engaged in for the purpose of perverting, or attempting to pervert, the course of justice
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involves, or is engaged in for the purpose of, corruption of any other kind
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constitutes maladministration
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is an abuse of public trust
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involves, or is engaged in for the purpose of, a public official abusing his or her position as a public official
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could, if proved, give reasonable grounds for disciplinary action against a public official.
Senator Xenophon and Dr Fernandes
A public interest exemption was proposed as an amendment in the Senate as part of the debate relating to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 (See Hansard, Senate, 26 March 2015 at 102).
This suggestion was as an alternative, that is, if section 35P were not to be repealed:
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The basic offence would be the same but have an additional element, namely that the person knows that the information relates to an SIO.
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The aggravated offence would be the same as the proposed basic offence but with an express harm requirement, namely that the person intends the disclosure of information to endanger the health or safety of any person or prejudice the effective conduct of an SIO.
A new paragraph of section 35P(3) would provide that the offences do not apply if the disclosure was:
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by a person who was working in a professional capacity as a journalist, or an employer of such a person
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published in good faith in a report or commentary about a matter of public interest, and
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the report was not likely to enable an ASIO employee, ASIO affiliate, a staff member of ASIS or an IGIS official to be identified.
This would be followed by a new subsection along the following lines:
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Without limiting the generality of [the new paragraph], a disclosure is about a matter of public interest if it relates to one or more of the following:
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contravenes a law of the Commonwealth, a State or Territory
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contravenes a law of a foreign country
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is engaged in for the purpose of perverting, or attempting to pervert, the course of justice
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is engaged in for the purpose of corruption
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constitutes maladministration
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constitutes an abuse of public trust
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involves an official of a public agency abusing his or her position as an official of that agency, or
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could, if proved, give reasonable grounds for disciplinary action against an official of a public agency.
Australian Lawyers for Human Rights
The suggestion is that a section along the following lines be added to the Act.
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No person is guilty of an offence under section 35P if the person establishes that he or she acted in the public interest.
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Subject to the following provision [in deciding], a person acts in the public interest if:
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the person acts for the purpose of disclosing an offence under an Act of Parliament, or similar substantial or serious misfeasance, whether or not amounting to an offence, that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s functions for or on behalf of the Government of Australia, and/or
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the public interest in the disclosure on balance outweighs the public interest in non-disclosure.
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In deciding whether the public interest in the disclosure on balance outweighs the public interest in non-disclosure, a judge or court must consider:
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the seriousness of the alleged offence
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whether the person had reasonable grounds to believe that the disclosure would be in the public interest
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the nature of the public interest intended to be served by the disclosure
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the person’s reasonable belief as to the extent of the harm or risk of harm created by the disclosure
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the person’s reasonable belief as to the extent of the harm or risk of harm created by non-disclosure of the information
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whether the person tried other reasonably accessible alternatives before making the disclosure in the way that they made it
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whether no more information was publicly disclosed than the person believed was reasonably necessary in the light of their perception of the extent or risk of harm involved, and
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the existence of exigent circumstances justifying the disclosure (including, but not limited to, whether the communication of the information was necessary to avoid grievous bodily harm or death).
Councils for civil liberties across Australia
The suggestion is that the offences would not apply if the disclosure was made by either:
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a journalist in the ordinary course of their work, or
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an informant who gives information to a journalist in the expectation that the information may be published in a news medium, and
either
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the journalist did not intend to endanger the health or safety of any person or prejudice the effective conduct of an SIO, or
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the disclosure exposes conduct by ASIO, a government department or agency, or any other entity or person involved in an SIO that may be capable of constituting:
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conduct involved in the SIO that:
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involves the death of, or serious injury to, any person
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constitutes torture
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involves the commission of a sexual offence against any person, or
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results in significant loss of, or serious damage to, property, or
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misconduct by ASIO, a government department or agency, or any other entity or person involved in an SIO, or
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a power exercised for an improper purpose by ASIO, a government department or agency, or any other entity or person involved in an SIO that is beyond the scope of an SIO authority, or
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the disclosure was otherwise in the public interest.
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A defendant who wishes to deny criminal responsibility by relying on the second of the preceding three points [disclosure exposes conduct] would bear an evidential burden in relation to that matter.
Joint Media Organisations
The suggestions is that sections 35P(1) and (2) remain the same but with knowledge rather than recklessness as the fault element attaching to the circumstance that the information relates to an SIO.
A new paragraph of section 35P(3) would provide that the offences do not apply if the disclosure was:
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made in good faith for the purpose of the information being published in a report or commentary about a matter in the public interest.
(An alternative form of words for the additional exception could be for a disclosure made in good faith in a report or commentary published about a matter of public interest by a person engaged in a professional capacity as a journalist where the report or commentary does not disclose, directly or by inference, the identity of a security officer.)
This would be followed by a new subsection along the following lines:
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Without limiting the generality of [the new paragraph], a disclosure is about a matter of public interest for the purposes of [the new paragraph] if it is or relates to:
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a matter that increases the ability of the public to scrutinise issues of national security, including security activities or Government policy, or
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a matter that contributes to the public debate on national security matters or related issues
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conduct that, but for the provisions of this Act:
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contravenes a law of the Commonwealth, a State or a Territory
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contravenes a law of a foreign country
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perverts, or is engaged in for the purpose of perverting, or attempting to pervert, the course of justice
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involves, or is engaged in for the purpose of, corruption of any other kind
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constitutes maladministration
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is an abuse of public trust
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involves, or is engaged in for the purpose of, a public official abusing his or her position as a public official
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could, if provided, give reasonable grounds for disciplinary action against a public official.
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