Report on the impact on journalists of section 35P of the asio act
Scrutiny of the NSLAB (No 1) by the Senate Standing Committee for the Scrutiny of Bills
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- The NSLAB (No 1) 2014 passed by the Senate and introduced into the House of Representatives
Scrutiny of the NSLAB (No 1) by the Senate Standing Committee for the Scrutiny of BillsThe NSLAB (No 1) 2014 was also the subject of scrutiny by the Senate Standing Committee for the Scrutiny of Bills. The Committee reported on this subject in the its Twelfth Report of 2014 (24 September 2014). That report included the following comments (pages 627–628) relating to proposed section 35P: The explanatory memorandum suggests these ‘offences are necessary to protect persons participating in an SIO and to ensure the integrity of operations, by creating a deterrent to unauthorised disclosures, which may place at risk the safety of participants or the effective conduct of the operation’ (at p. 111). The explanatory memorandum also explains that the offences may be committed by any ‘persons to whom information has been [sic] about an SIO has been communicated in an official capacity, and persons who are the recipients of an unauthorised disclosure on [sic] information, should they engage in subsequent disclosure’. Although the purposes of protecting the integrity of operations and the safety of participants in operations can be readily understood, it must also be noted that these offences are drafted so as to have broad application. First, they are not limited to initial disclosures of information relating to an SIO but cover all subsequent disclosures (even, it would seem, if the information is in the public domain). In addition, these new offences as currently drafted may apply to a wide range of people including whistleblowers and journalists. Second, the primary offence (unlike the aggravated version) is not tied to the underlying purposes of the criminalisation of disclosure. This means that the offence (under subsection 35P(1)) could be committed even if unlawful conduct in no way jeopardises the integrity of operations or operatives. The concern about the breadth of application of these offences, in light of their purposes, is arguably heightened given that whether or not the disclosure of information will be caught by the provisions depends on whether or not the information relates to an SIO, a question which depends on an authorisation process which is internal to the Organisation. As the justification for the breadth of application of these provisions is not directly addressed in the explanatory memorandum the committee seeks a more detailed justification from the Attorney-General in this regard. The committee emphasises that its interest is not only in the underlying purposes served by the provisions, but whether these purposes could be achieved by offences that are more directly connected and proportionate to the achievement of those purposes. A further reason why these offences may be considered to be too broad in their application is that it is possible they may apply to the disclosure of information even if the person who discloses the information is not aware that it relates to an SIO. Given the nature of an SIO it is likely that only persons within the Organisation will know whether information relates to an SIO. It is also relevant to note that the boundaries of an SIO, and therefore what information ‘relates’ to such an operation, may be unclear to the extent that an SIO authority need only state ‘a general description of the nature of the special intelligence conduct that the persons’ authorised to engage in conduct for the purposes of the SIO ‘may engage in’ (paragraph 35D(1)(c)). The committee therefore also seeks clarification about (and a justification for) the applicable fault requirement in relation to the element that ‘the information relates to a special intelligence operation’ (paragraph 35P(1)(b) and paragraph 35P(2)(b)). Pending the Attorney-General’s reply the committee draws Senators’ attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee’s terms of reference. After including extracts from the Attorney-General’s response and requesting that certain additional information be included in the Explanatory Memorandum, the Committee drew section 35P to the attention of Senators and left the question of whether the proposed approach was appropriate to the Senate as a whole. The NSLAB (No 1) 2014 passed by the Senate and introduced into the House of RepresentativesThe NSLAB (No 1) 2014 passed the Senate on 25 September 2014 and was introduced into the House of Representatives on 30 September 2014. The Second Reading Speech to the NSLAB (No 1) 2014, Hansard, House of Representatives, 1 October 2014, Mr Keenan (Stirling, Minister for Justice) describes as follows the PJCIS report and the approach taken by the Government to that report and in relation to the SIO scheme: The committee unanimously recommended that the Bill be passed, subject to the implementation of 16 targeted improvements to improve oversight, accountability and other safeguards. The government accepted all of these suggestions, and moved amendments in the Senate to implement the relevant recommendations. These measures were passed by the Senate on 25 September, and represent valuable improvements to the Bill. … The third key reform is the implementation of a recommendation of the Parliamentary Joint Committee on Intelligence and Security in its 2013 inquiry to establish a dedicated statutory framework for ASIO’s covert intelligence-gathering operations. Much of the intelligence information that is relevant to the security of Australia must necessarily be collected by the organisation on a covert basis. However, such covert operations are not without risks. In addition to the potential risks to the safety of participants, covert operations can in some instances require participants to associate with those who may be involved in criminal activity—for instance, the commission of offences against the security of the Commonwealth. Covert operations may, therefore, expose intelligence personnel or sources to legal liability in the course of their work. For this reason, some significant covert operations do not commence or are ceased. To address this issue, the bill creates a limited immunity for participants in authorised, covert operations. Just as part IAB of the Crimes Act provides for a limited immunity for covert law enforcement operations, it is appropriate that corresponding protections are extended to participants in covert intelligence operations. Consistent with the parliamentary joint committee’s recommendations in its 2013 and 2014 inquiries, the limited immunity is subject to rigorous safeguards. In particular, it is restricted to the conduct of a participant in a special intelligence operation that is authorised by the Attorney-General. The participant and the specific conduct must be authorised expressly in advance. There are a number of reporting requirements to the Attorney-General and the Inspector-General of Intelligence and Security, where an operation is commenced, periodically every six months, and where certain conduct is engaged in (namely that which causes death, serious injury or property damage). As an additional safeguard, the limited immunity from legal liability expressly excludes conduct in the nature of entrapment, serious offences against the person or property, and torture. 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