Report on the impact on journalists of section 35P of the asio act
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- Insiders
- Context
- Considerations
- The meaning of ‘journalists’
RecommendationsSection 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. InsidersThe basic offence and the aggravated offences for insiders would be as per current section 35P. OutsidersThe 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). 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 them in that capacity). This defence should require the defendant to satisfy the court that:
ContextThe ReferenceOn 11 December 2014, in conjunction with my appointment as the Acting Independent National Security Legislation Monitor (INSLM)5, the Prime Minister referred the following matter to me pursuant to section 7 of the Independent National Security Legislation Monitor Act 2010 (INSLM Act): …any impact on journalists in the operation of section 35P of the Australian Security Intelligence Organisation Act 1979 concerning offences for the disclosure of information relating to a ‘special intelligence operation’, as inserted by the National Security Legislation Amendment Act (No 1) 2014. This report on the Reference is provided pursuant to section 6(1)(c) and section 30(1) of the INSLM Act.
The object of this Act is to appoint an Independent National Security Legislation Monitor who will assist Ministers in ensuring that Australia's counter-terrorism and national security legislation: … (c) is consistent with Australia's international obligations, including: (i) human rights obligations; and (ii) counter-terrorism obligations; and (iii) international security obligations; and (d) contains appropriate safeguards for protecting the rights of individuals. I also needed to bear in mind section 6(1)(b) of the INSLM Act, which describes a function of the INSLM as follows: (b) to consider, on his or her own initiative, whether any legislation mentioned in paragraph (a): (i) contains appropriate safeguards for protecting the rights of individuals; and (ii) remains proportionate to any threat of terrorism or threat to national security, or both; and (iii) remains necessary. In addition, I needed to consider section 8 of the INSLM Act, which provides: When performing the Independent National Security Legislation Monitor’s functions, the Monitor must have regard to:
The meaning of ‘journalists’A threshold question for the purposes of this Reference is what is meant by the word ‘journalists’. The Macquarie Dictionary defines ‘journalist’ as ‘one engaged in journalism’ and relevantly defines ‘journalism’ as ‘the occupation of writing for, editing and producing newspapers and other periodicals, and television and radio shows’. Other definitions of ‘journalist’ include ‘one who keeps a journal’ (Free Dictionary) and of ‘journalism’ include ‘the activity of gathering, creating, and presenting news and information’ (American Press Institute). Some Commonwealth laws which refer to ‘journalist’ clearly apply only to ‘professional’ journalists:
For the purposes of the ‘shield’ law in section 202 of the Broadcasting Services Act 1992, the term ‘journalist’ is defined in section 202(5) to mean a person engaged in the profession or practice of reporting for, photographing, editing, recording or making television or radio programs, or datacasting content, of a news, current affairs, information or documentary character. By comparison, the following definitions apply for the purposes of the ‘shield’ law in section 126H of the Evidence Act 1995, which is designed to give presumptive protection to journalists against having to disclose, in legal proceedings, the identity of confidential informants:
That language seems potentially to encompass a broader range of ‘journalists’ than the other Commonwealth laws mentioned. For example, an article entitled Democracy in Australia—Protection of journalists and their sources published by the Australian Collaboration, states: The federal shield law applies to anyone who is ‘engaged and active in the publication of news’, including bloggers, tweeters, aggregators and email campaigners. The law also protects those publishing in a ‘news medium’, defined as ‘any’ medium of dissemination to the public. The same article contrasts federal shield law with New South Wales shield law, which restricts the definition of a ‘journalist’ to a person ‘engaged in the profession or occupation of journalism’. However, the Explanatory Memorandum to the Evidence Amendment (Journalists’ Privilege) Bill 2010, which became the relevant amending Act in 2011, states that the protection operates alongside the Australian Journalists Association Code of Ethics, and that: It is also significant to note that the journalist should be operating in the course of their work. This means that the journalist should be employed as such for the privilege to operate, and private individuals who make postings on the internet or produce non-professional news publications, where this is not their job, will not be covered by section 126H. There may be some difficulties applying this test of a ‘journalist’ in some cases, for example, in relation to freelance or self-employed commentators including internet bloggers, who may be remunerated for intermittent reporting work. Given the circumstances leading to this Reference (see paragraphs 30-31 below and Appendix B), this inquiry proceeded on the basis that ‘journalists’ in this Reference refers to professional journalists, recognising that there will be debate as to the boundaries of that description. Further, the inquiry focused on journalists operating independently of the Government.
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