Scrutiny of the NSLAB (No 1) 2014 by the Parliamentary Joint Committee on Human Rights

Scrutiny of the NSLAB (No 1) 2014 by the Parliamentary Joint Committee on Human Rights

In its Sixteenth Report of the 44^th Parliament (25 November 2014), that Committee concluded as follows in relation to the offences—after the NSLAB (No 1) 2014 had become law, and in light of the Minister’s response that the Government did not intend to supplement the material provided in the Statement in the Explanatory Memorandum:

2.107 The committee considers that the offence provisions have not been shown to be a reasonable, necessary and proportionate limitation. On this question, the statement of compatibility relies on the existence of defences and safeguards as facilitating the operation of oversight and accountability bodies in respect of the measure.

2.108 However, the committee notes that, as the non-aggravated offence applies to conduct which is done recklessly rather than intentionally, a journalist could be found guilty of an offence even though they did not intentionally disclose information about a SIO. As SIOs can cover virtually all of ASIO’s activities, the committee considers that these offences could discourage journalists from legitimate reporting of ASIO’s activities for fear of falling foul of this offence provision. This concern is compounded by the fact that, without a direct confirmation from ASIO, it would be difficult for a journalist to accurately determine whether conduct by ASIO is pursuant to a SIO or other intelligence gathering power.

2.109 The committee notes that the potential ‘chilling effect’ of the new offences on journalists reporting on ASIO activities raises [sic] could undermine public reporting and scrutiny of ASIO's activities, such as in cases where it is alleged that mistakes have been made by ASIO.

2.110 The committee notes that the available defences are primarily designed to protect disclosure to the IGIS. The committee notes that there is no general defence related to public reporting in the public interest or general protections for whistleblowers other than for disclosure to the IGIS. The defence provisions can therefore reasonably be described as very narrow, and the committee considers that they do not offer adequate protection of the public interest in respect of public reporting.

2.111 The committee therefore considers that, in light of these considerations, the Attorney-General has not demonstrated that the offence provisions are reasonable or proportionate limitations on the right to freedom of expression.

2.112 On the information provided, the committee considers that the new offence provisions for disclosing information regarding SIOs are incompatible with the right to freedom of expression because the provisions appear to impose disproportionate limits on that right.

The Government response to the Committee’s conclusion, as reflected in an AGD/ASIO submission to this inquiry, was as follows:

The Attorney-General has also written to that Committee, indicating that the Government is satisfied that all measures in the National Security Legislation Amendment Act (No 1) 2014 are compliant with Australia’s human rights obligations following careful consideration in the development of the legislation, and expressing concern that the Committee’s methodology in reaching conclusions about the compatibility or otherwise of measures appears to be informed by considerations of form rather than substance.

Section 35P comes into operation

Section 35P came into operation on 30 October 2014. Section 35P provides as follows, with changes from the NSLAB (No 1) 2014 highlighted in yellow:

35P Unauthorised disclosure of information

Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to a special intelligence operation.

Penalty: Imprisonment for 5 years.

Note: Recklessness is the fault element for the circumstances described in paragraph (1)(b)— see section 5.6 of the Criminal Code.

Unauthorised disclosure of information—endangering safety, etc.

(2) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to a special intelligence operation; and

(c) either:

(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; or

(ii) the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

Penalty: Imprisonment for 10 years.

Note: Recklessness is the fault element for the circumstances described in paragraph (2)(b)— see section 5.6 of the Criminal Code.

Exceptions

(3) Subsections (1) and (2) do not apply if the disclosure was:

(a) in connection with the administration or execution of this Division; or

(b) for the purposes of any legal proceedings arising out of or otherwise related to this Division or of any report of any such proceedings; or

(c) in accordance with any requirement imposed by law; or

(d) in connection with the performance of functions or duties, or the exercise of powers, of the Organisation; or

(e) for the purpose of obtaining legal advice in relation to the special intelligence operation; or

(f) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

(g) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.

Extended geographical jurisdiction

(4) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (2).

(5) Subsection (4) does not, by implication, affect the interpretation of any other provision of this Act.

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