The NSLAB (No 1) 2014 passed by the House of Representatives

Relevant extracts from the Explanatory Memorandum to the NSLAB (No 1) 2014

569. New section 35P creates two offences in relation to the unauthorised disclosure of information relating to an SIO. 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.

570. The offences apply to disclosures by any person, including participants in an SIO, other persons to whom information about an SIO has been communicated in an official capacity, and persons who are the recipients of an unauthorised disclosure of information, should they engage in any subsequent disclosure.

571. The term ‘disclose’ is intended to take its ordinary meaning for the purpose of section 35P. It is intended to include the making available of information to others by any means. It is not intended to require, as a rule, proof that the information was received by another person, or proof that another person read, heard or viewed the information. Nor is the term intended to require proof that a person provided or intended to provide information to a particular person or group of persons.

572. New subsection 35P(1) creates an offence applying to the conduct of a person in the form of a disclosure of information, and a circumstance that the information relates to an SIO. The fault element of intention applies to the physical element of a person‘s conduct in disclosing information, by reason of subsection 5.6(1) of the Criminal Code. The fault element of recklessness applies to the physical element of the circumstance that the information relates to an SIO, by reason of subsection 5.6(2) of the Criminal Code. The offence carries a maximum penalty of five years’ imprisonment. This is confirmed by a note to subsection (1), which was inserted following recommendation 13 of the Parliamentary Joint Committee on Intelligence and Security in its inquiry into the Bill. The note has been included to acknowledge the Committee’s concern to ensure that the significant threshold imposed by the fault element of recklessness is communicated expressly on the face of the provisions, in recognition of concerns raised in the course of the Committee’s inquiry. It does not displace the general principles of criminal responsibility in Chapter 2 of the Criminal Code, which are of general application to all Commonwealth offences and are not required to be expressly stated in individual offence provisions. The insertion of a purely declaratory note to this effect is an exceptional measure.

573. The offence in subsection (1) does not require proof of intent to cause harm, or any proof of resultant harm from the disclosure. This is because the wrongdoing to which it is directed is the harm inherent in the disclosure of highly sensitive intelligence information. The disclosure of the very existence of an SIO—which is intended to remain covert—is, by its very nature, likely to cause harm to security interests. Given the necessarily covert nature of SIOs, disclosure of the existence of such an operation automatically creates a significant risk that the operation may be frustrated or compromised, and that the safety of its participants or persons associated with them, such as family members, may be jeopardised. Once such information is disclosed, there is limited recourse available to address these significant risks. This harm is not contingent on a person’s malicious intention in making a disclosure, except that it may be aggravated by any such malice. As such, the offence in subsection (1) gives effect to the strong need for a deterrent to such behaviour.

574. The maximum penalty of five years’ imprisonment reflects that a person was reckless in making the disclosure, and maintains parity with the penalties applying to the secrecy offences in s 34ZS of the ASIO Act, concerning the unauthorised disclosure of information relating to ASIO’s questioning and detention warrants. These offences similarly do not require proof of intent to cause harm or resultant harm, in recognition that such harm is implicit in the sensitive nature of the information.

575. New subsection 35P(2) creates an aggravated form of the offence in subsection 1. The relevant aggravating elements, which are set out in paragraph (c), are that:

(i) the person intended, in making the disclosure, to endanger the health or safety of any person, or prejudice the effective conduct of an SIO, or

(ii) the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of an SIO.

576. The fault element applying to the physical element in paragraph 35P(2)(c)(i) is that of intention, pursuant to the express statement in the provision. The fault element applying to the physical element in paragraph 35P(2)(c)(ii) is that of recklessness, by reason of subsection 5.6(2) of the Criminal Code. The aggravated offence is subject to a maximum penalty of 10 years’ imprisonment. The note to subsection (2) is in identical terms to that in subsection (1) and has been included for the same reasons (as outlined above).

Offence-specific defence—new subsection 35P(3)

577. The new offences in subsections 35P(1) and (2) are subject to an offence-specific defence in subsection 35P(3), which provides for a number of lawful disclosures in paragraphs 35P(3)(a)-(g). These include disclosures pertaining to the operation of Division 4 or legal proceedings relating to Division 4, other legal obligations of disclosure, the performance by the Organisation of its statutory functions, obtaining legal advice in relation to the SIO, disclosures to an IGIS official for the purpose of the IGIS exercising powers or performing functions or duties under the IGIS Act, and disclosures by an IGIS official in connection with the IGIS official exercising such powers or performing such functions or duties.

578. The exceptions in favour of legal advice, and disclosures to or by IGIS officials in paragraphs (e)–(g) implement recommendation 11 of the Parliamentary Joint Committee on Intelligence and Security. The Committee was concerned to ensure that an exception was available for the provision of legal advice in circumstances in which proceedings were not commenced in relation to an SIO. The Committee was further concerned to ensure that the offences in section 35P did not operate as a perceived disincentive to the communication of information to the IGIS in connection with his or her statutory oversight functions.

579. Consistent with subsection 13.3(3) of the Criminal Code, the defendant bears an evidential burden in relation to the offence-specific defence in subsection 35P(3). This means that he or she must adduce or point to evidence suggesting a reasonable possibility that one or more of the matters set out in paragraphs 35P(3)(a)-(g) exist. The prosecution is then required to negate this matter to the legal standard (beyond reasonable doubt).

580. It is appropriate to frame the matters in subsection 35P(3) as an offence-specific defence (with the result that an evidential burden is imposed on the defendant) rather than including these matters as an element of the offences in subsections 35P(1) and (2). For example, a requirement that the disclosure was not made pursuant to any of the matters set out in paragraphs 35P(3)(a)-(g), with the result that the prosecution bears the legal and evidential burden.

581. This is because evidence suggesting a reasonable possibility of the authorised nature of the disclosure is readily available to a defendant, who would have had such authority, or perceived authority, in contemplation at the time he or she disclosed the relevant information. The inclusion of subsection 35P(3) as an element of the offences in subsections 35P(1) and (2) would be inappropriate is it would impose a disproportionate burden on the prosecution. It would be necessary for the prosecution to disprove, as a matter of course, all of the matters set out in paragraphs 35P(3)(a)–(g) even if there is no evidence suggesting they are in issue.

582. Subsection 35P(3) does not include an express defence for the communication of information relating to a special intelligence operation, where such communication is found to be in the public interest. The Commonwealth Director of Public Prosecutions (CDPP) is required, under the Prosecution Policy of the Commonwealth, to consider the public interest in the commencement or continuation of a prosecution. It would be open to the CDPP, in making independent decisions on this matter, to have regard to any public interest in the communication of information in particular instances as the CDPP considers appropriate.

Penalties

583. The penalties applying to these offences implement a gradation consistent with established principles of Commonwealth criminal law policy, as documented in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The Guide provides that a heavier maximum penalty is appropriate where the consequences of an offence are particularly dangerous or damaging.

584. The offence in subsection 35P(2), applying to the disclosure of information with an intent to cause harm (or where harm will result from such a disclosure), appropriately attracts a heavier penalty than the offence in subsection 35P(1), which targets conduct that places at risk such information. The penalty of 10 years’ imprisonment applying to the aggravated offence in subsection 35P(2) maintains parity with the penalty applying to the offence of unauthorised communication of information in subsection 18(2) (as that penalty is amended by Schedule 6).

585. The maximum penalty of five years’ imprisonment applying to the offence in subsection (1) reflects an appropriate gradation with the new unauthorised dealing offences in sections 18A and 18B (inserted by Schedule 6) which carry a maximum penalty of three years’ imprisonment, and parity with section 34ZS of the ASIO Act regarding the unauthorised disclosure of information relating to a questioning or questioning and detention warrant. The unauthorised disclosure of information pertaining to an SIO is considered to be more culpable than the unauthorised dealing with information pertaining to the Organisation‘s statutory functions. For example, the unauthorised disclosure of information pertaining to an SIO, by its very nature, carries a greater risk of harm, both in jeopardising the safety of participants and in potentially limiting the Organisation’s intelligence-gathering capability by compromising the integrity of the operation.

586. Subsection (4) provides that section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to the offences in section 35P. This means that the offences apply to any person, in respect of conduct engaged in any country, whether or not the conduct is an offence under the laws of the relevant local jurisdiction (if outside Australia). This form of extended geographical jurisdiction is necessary to ensure that the offences apply to SIO participants or persons who have knowledge of an SIO who are not Australian citizens and who engage in unauthorised disclosures outside Australia. Given the potential of information obtained under an SIO to place at risk Australia‘s national security and intelligence gathering capabilities, in addition to potentially endangering SIO participants, it is appropriate that the offences have the widest possible geographical application to target such wrongdoing. Prosecutions of non-Australians in relation to conduct outside Australia is subject to the safeguard in section 16.1 of the Criminal Code, which requires the Attorney-General to consent to the commencement of such prosecutions.

587. Subsection 35P(5) provides that subsection 35P(4) does not, by implication, affect the interpretation of any other provision in the ASIO Act. This provision is necessary because some offences in the ASIO Act were enacted prior to the commencement of the extended geographical jurisdiction provisions of Part 2.7 of the Criminal Code on 24 May 2001. As such, the geographical jurisdiction of any pre-2001 offence provisions which do not provide for the application of Part 2.7 of the Criminal Code is assessed in accordance with ordinary principles of statutory interpretation. Subsection 35P(5) makes clear that the inclusion of subsection 35P(4) in relation to new section 35P is not intended to have any impact on the interpretation of the geographical jurisdiction applying to any offence provision in the ASIO Act enacted prior to 24 May 2001.

The Explanatory Memorandum to the NSLAB (No 1) 2014 also includes a ‘Statement of compatibility with human rights’ prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The relevant part is as follows:

New offences

76. The Schedule will create two new offences in new section 35P relating to the unauthorised disclosure of information relating to an SIO, one being an aggravated offence, with penalties of five and ten years imprisonment. These offences are necessary to protect persons participating in an SIO and will 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. The relevant aggravating elements are an intention of endangering the health or safety of any person, or prejudicing the effective conduct of an SIO or that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of an SIO. The offences apply to disclosures by any person, including for example, participants in an SIO, other persons to whom information about an SIO has been communicated in an official capacity and persons who are the recipients of an unauthorised disclosure of information. The offences have statutory defences—including disclosures pertaining to the operation of Division 4 or legal proceedings relating to Division 4, other legal obligations of disclosure and the performance by ASIO of its statutory functions.

77. The fault element of intention applies to the physical element of a person’s conduct in relation to both offences, by reason of subsection 5.6(1) of the Criminal Code. The fault element of recklessness applies to the physical element of the circumstance that the information relates to an SIO, by reason of subsection 5.6(2) of the Criminal Code. This means that the person must have been aware of a substantial risk that the information related to a special intelligence operation, but nonetheless and unjustifiably in the circumstances took the risk of making the disclosure. Accordingly, a person who is wholly unaware of the existence of a special intelligence operation, and discloses information, is unlikely to meet the threshold of recklessness.

Freedom of expression—Article 19(2) of the ICCPR

78. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media. Article 19(3) provides that this right may be limited if it is necessary to achieve a legitimate purpose, including national security. Any limitation must be established by law and be reasonable and proportionate to achieve a legitimate objective.

79. These offences engage and limit the right to freedom of expression in that they prohibit the disclosure of information relating to an SIO, including publication of such information. The limitation is to achieve a permissible purpose set out in Article 19(3), being matters of national security. These offences are necessary to achieve the legitimate objective of protecting persons participating in an SIO and to ensure the integrity of operations related to national security, by creating a deterrent to unauthorised disclosures, which may place at risk the safety of participants or the effective conduct of the operation. The offences apply to disclosures by any person, including participants in an SIO, other persons to whom information about an SIO has been communicated in an official capacity and persons who are the recipients of an unauthorised disclosure of information, should they engage in any subsequent disclosure for these reasons.

80. Communicating such sensitive information can place the health and safety of participants at risk, negates the integrity of operations in general and affects the conduct of the operation in question. As such, the limitation on the right is necessary for the protection of national security and the health and safety of participants. It is reasonable as the offence provides appropriate defences and retains important safeguards facilitating the operation of oversight and accountability bodies. For example, the offence would not apply through subsection 18(9) of the IGIS Act if a document was dealt with for the purpose of producing information under subsection 18(1) of the IGIS Act. Further, the offence would not apply in accordance with section 10 of the Public Interest Disclosure Act 2013 (PID Act) if information was dealt with for the purpose of making a public interest disclosure in accordance with the PID Act as it applies to ASIO. For example, a person could report a matter in relation to an SIO to internal authorised officers or the IGIS. To avoid any doubt, the offences further contain express exceptions for disclosures to the IGIS or his or her staff, and the IGIS and his or her staff in connection with their statutory oversight duties.

81. These limitations on Article 19(2) are for a permissible purpose as set out in Article 19(3), are necessary to achieve a legitimate objective which is protecting persons participating in an SIO and to ensure the integrity of operations, are provided for by law and are reasonable and proportionate to achieve this objective.