© Commonwealth of Australia 2015
ISBN 978-1-925237-99-3 Report on the impact on journalists of section 35P of the ASIO Act (Hardcopy)
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Report on the impact on journalists of section 35P of the ASIO Act
Contents
Report on the impact on journalists of section 35P of the ASIO Act 2
Preface
The report is the result of a Reference from the Prime Minister under section 7 of the Independent National Security Legislation Monitor Act 2010 (INSLM Act) and is provided pursuant to section 30(1) of the INSLM Act.
I invited submissions through a public advertisement and direct invitation to a broad range of interested parties. Submissions closed on 20 April 2015, with a total of 41 submissions received.1 I also requested and received a range of information and documents from relevant agencies. In addition, hearings were held pursuant to section 21 of the INSLM Act. Some parts of the hearings were held in private, where sensitive operational issues were discussed.
The submissions, information received and transcripts of the public hearings are available at http://www.dpmc.gov.au/pmc/about-pmc/core-priorities/independent-national-security-legislation-monitor. As a result, it is not necessary to reproduce that material in full in this report and only key aspects are summarised in the Appendixes.2 The report focuses on the material that is critical to the conclusions reached.
I would like to acknowledge the assistance of successive advisers, particularly Mr Charles Beltz, and the administrative assistance provided by the Department of the Prime Minister and Cabinet in conducting the inquiry and preparing this report.
The Hon Roger Gyles AO QC
Independent National Security Legislation Monitor
Executive summary Purpose
This report discusses the impact on journalists of the operation of section 35P of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) concerning offences for the disclosure3 of information relating to a special intelligence operation (SIO).
Impact
The impact of section 35P on journalists is twofold:
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It creates uncertainty as to what may be published about the activities of ASIO without fear of prosecution. The so-called chilling effect of that uncertainty is exacerbated because it also applies in relation to disclosures made to editors for the purpose of discussion before publication.
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Journalists are prohibited from publishing anywhere at any time any information relating to an SIO, regardless of whether it has any, or any continuing, operational significance and even if it discloses reprehensible conduct by ASIO insiders.4
Issues
The basic problem with section 35P is that it does not distinguish between journalists and others (outsiders) and ASIO insiders. The application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere.
The SIO scheme is necessary and proportionate to the present threats to security. The statutory and administrative procedures in force are appropriate safeguards against abuse. A secrecy provision relating to the scheme is not inappropriate. However, section 35P is not justified. It does not contain adequate safeguards for protecting the rights of outsiders and is not proportionate to the threat of terrorism or the threat to national security.
Section 35P is arguably invalid on the basis that it infringes the constitutional protection of freedom of political communication. Section 35P is also arguably inconsistent with article 19 of the International Covenant on Civil and Political Rights and so not in accordance with Australia’s international obligations.
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.
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