Report on the impact on journalists of section 35P of the asio act

Appendix J—Relevant constitutional and international law

Constitutional law

Power to make the law

The defence power is a ‘purposive’ power. As such, to fall within the defence power, legislation must be capable of being regarded as appropriate and adapted for the purpose of defence. The defence power is not limited to actual armed conflicts—it is a broad power which enables laws to be made to facilitate preparedness for future conflicts and which ‘waxes and wanes’ according to the existence or absence of actual or imminent national threats, including acts of terrorism.⁴¹

While section 35P is cast in broad terms, the information to which it applies must at least ‘relate to’ a ‘special intelligence operation’ (SIO), which is a particular operational form of ASIO activity. The role of ASIO under the ASIO Act (very broadly) is to protect Australia and the people of Australia from various specified threats. There seems little reason to doubt that section 35P would be supported by the defence power.⁴²

Implied freedom of political communication

However, the High Court has found, in a series of cases beginning in 1992,⁴³ that the Constitution implies a freedom of political communication, which protects the freedom to communicate on governmental or political matters—although the precise scope of the communications protected is uncertain.

The questions to be determined in identifying whether the implied freedom of political communication will invalidate a law in any given case were explained by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and refined in Coleman v Power (2004) 220 CLR 1 and very recently in McCloy v State of New South Wales [2015] HCA 34 (7 October 2015), per French CJ, Kiefel, Bell and Keane JJ at [2]-[5]. In summary form, they are as follows:

1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?

If ‘no’, then the law does not exceed the implied limitation and the enquiry as to validity ends.

2. If ‘yes’ to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

The answer to that question will be in the affirmative if the purpose of the law and the means adopted do not adversely impinge on the functioning of the system of representative government.

3. If ‘yes’ to question 2, is the law reasonably appropriate and adapted to advance that legitimate object?

This involves a proportionality test, which involves considering the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test—these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

Suitable—as having a rational connection to the purpose of the provision.

Necessary—in the sense that there is no obvious and compelling alternative reasonably practicable means of achieving the same purpose, which has a less restrictive effect on the freedom.

Adequate in its balance—a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

In this context, the same judges made the following significant comment (at [84]):

It is not possible to ignore the importance of a legislative purpose in considering the reasonableness of a legislative measure because that purpose may be the most important factor in justifying the effect that the measure has on the freedom. The submissions for the Commonwealth bear this out. The Commonwealth submitted that the Court cannot consider the relationship between the means adopted by the law and ‘the constitutional imperative’ to not infringe the freedom without having the object of the law in view, for some statutory objects may justify very large incursions on the freedom. The example the Commonwealth gave was the object of protecting security of a nation at a time of war.

Application of the implied freedom in relation to secrecy laws

The case involved a public servant (Bennett) who made certain public comments after having been formally directed by the CEO of Customs (a public service agency) to refrain from doing so. Bennett was disciplined for breach of regulation 7(13) of the Public Service Regulations 1999 and his complaint to the Human Rights and Equal Opportunity Commission was unsuccessful. Bennett sought judicial review in the Federal Court, arguing that regulation 7(13) was invalid as it infringed the implied freedom of political communication.

Regulation 7(13) provided as follows:

An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head’s express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

The Federal Court (Finn J) held the regulation to be invalid. The Court relevantly commented as follows.

Official secrecy has a necessary and proper province in our system of government. A surfeit of secrecy does not. It is unnecessary to enlarge upon why I consider the regulation to be an inefficient provision other than to comment that its ambit is such that even the most scrupulous public servant would find it imposes ‘an almost impossible demand’ in domestic, social and work related settings …

The dimensions of the control it imposes impedes quite unreasonably the possible flow of information to the community—information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public’s knowledge and understanding of the operation, practices and policies of executive government.

Regulation 7(13) was subsequently replaced by regulation 2.1, which was later unsuccessfully challenged in the Supreme Court of the ACT⁴⁵ on the same constitutional basis. Regulation 2.1 relevantly provided for the scope of the relevant duty as follows:

2.1 Duty not to disclose information (Act s 13)

(1) This regulation is made for subsection 13(13) of the Act.

(2) This regulation does not affect other restrictions on the disclosure of information.

(3) An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.

(4) An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if the information:

(a) was, or is to be, communicated in confidence within the government; or

(b) was received in confidence by the government from a person or persons outside the government;

whether or not the disclosure would found an action for breach of confidence.

While section 35P is cast in broad terms, the information to which it applies must at least ‘relate to’ an SIO, which is an operational ASIO activity. As far as ASIO officials and other ‘insiders’ are concerned, the information caught by section 35P is effectively a subset of the information caught by section 18 of the ASIO Act. Any constitutional concern in relation to the implied freedom would apply with greater force in relation to section 18 than to section 35P, as the former is not linked to operational information.⁴⁶

This report is concerned with the question of the impact on outsiders—third parties such as journalists. National security including counter-terrorism and ASIO’s conduct are of legitimate concern in relation to government and politics. Section 35P burdens discussion about such matters.

The next question is whether the purpose of section 35P and the means adopted to achieve that purpose are compatible with maintaining the constitutionally prescribed system of representative and responsible government. The answer to that question would likely be ‘yes’, on the basis that the purpose of section 35P (broadly) is to protect national security.

The last question is whether section 35P is reasonably appropriate and adapted to serve that legitimate end, applying the proportionality test. Criticisms of section 35P, reflected in this report include: the width of the information caught; the application to information of no operational relevance; the prohibition being unlimited in time and space; the absence in the basic offence of an express harm requirement; the difficulty if not impossibility of knowing what is prohibited and the application of the prohibition to information already in the public domain. These criticisms combine to give substance to an argument that the answer to the last question is ’no’. On that basis, section 35P would be invalid. It is difficult to see how this section might be read down,⁴⁷ unless it was limited to ASIO employees and ASIO affiliates. In this regard, it is worth noting, as discussed earlier in the report, that applying the ordinary meaning of the word ‘disclose’ rather than the wide meaning contended by the authorities would arguably not catch publication by a journalist who does not have actual knowledge of the information disclosed.