The understanding in the community as to the role of the media in disclosing matters of public interest, together with aspects of constitutional law21and international law,22 require that any restriction on freedom of expression by journalists should be proportional to maintaining national security.
Where does section 35P come from?
The provenance of section 35P lies in sections 15HK and 15HL of the Crimes Act, which were inserted into Part IAB of the Act dealing with controlled operations in 2010. Part 1AB permitted authorisation of illegal conduct in the investigation of drug trafficking cases. It was introduced in 1996 as a response to the High Court decision in R v Ridgeway, where illegally-obtained evidence was excluded. It was extended to other offences in 2001, including offences involving espionage and threats to national security.23 There was no stand-alone secrecy provision in Part IAB. The 2010 amendments established a national (controlled operations) scheme. A review of the material concerning the development of that scheme does not reveal any rigorous examination of the secrecy provisions, particularly how they might relate to existing secrecy provisions or what impact they would have on freedom of expression. Neither was there any examination of how those provisions could be reconciled with prior reports of the Review of Commonwealth Criminal Law (the Gibbs Committee), the Commission of Inquiry into the Australian Secret Intelligence Service (ASIS) and the Australian Law Reform Commission (ALRC).24 In this regard, in Report No 112, Secrecy Laws and Open Government in Australia, the ALRC generally:
accepted that harm was implicit in any disclosure of information obtained or generated by intelligence agencies
accepted that specific secrecy offences could be justified in this context (the ALRC recommended that many secrecy offences be abolished and a new general secrecy offence be created)
recognised in this context a distinction between secrecy offences directed specifically at insiders (who have special duties to maintain secrecy) and those capable of applying to all persons, and
recommended that secrecy offences capable of applying to persons other than insiders have an express harm requirement.
The SIO scheme arose out of a recommendation in a 2013 Parliamentary Joint Committee on Intelligence and Security (PJCIS) Report that the ASIO Act should be amended to create an authorised intelligence operations scheme, adapted from the Crimes Act controlled operations scheme. Neither that report nor the preceding discussion paper referred to secrecy provisions. The second reading speech and the Explanatory Memorandum for the bill that introduced Division 4 of Part III in 2014 refer briefly to section 35P without noting or justifying extension of criminal sanctions for breach of secrecy to third parties or the lack of distinction between third parties and ASIO insiders. Section 35P generated significant controversy and criticism, particularly from the media. There was greater scrutiny of section 35P in later deliberations of the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights, as noted in Appendix B.
Conclusions in relation to precedents for section 35P
The Crimes Act precedent is not sufficient to justify section 35P. Apart from the fact that there was no real examination of the merits of the extension of secrecy in relation to that scheme, police operations deal with a much greater range of crimes than only those crimes which relate to national security (such as terrorist offences). Further, police operations are aimed at gathering evidence to support law enforcement through prosecution, rather than intelligence gathering per se. Of greater weight in favour of section 35P is the fact that there have been numerous controlled operations conducted since 2010 without media or other criticism. No submission to this inquiry by or on behalf of a journalist or media organisation said that material was not published because of the controlled operations secrecy sections in the Crimes Act, and no prosecutions have been brought or considered.25 However, it has only been five years since 2010, and the media and other parties now interested do not seem to have been conscious of the secrecy provisions, and may not have become aware of any controlled operation. Also, informal contacts between police and journalists are routine and may have averted any problem.
Neither section 92 nor section 34ZS (referred to in paragraph 23 above) provide a satisfactory precedent for section 35P. Each is a more closely targeted provision, drafted differently from section 35P. Potential harm to individuals is built in to section 92, which applies generally. Section 34ZS does not prohibit disclosure of a broad range of information for all time and furthermore, section 34ZS was not subjected to the close examination that section 35P has received. If that had occurred, problems of the kind identified in relation to section 35P would have emerged.
Overseas experience
Is section 35P justified by overseas precedents or experience? Analysing the situation in other jurisdictions is difficult.26 The security landscape varies from place to place, which makes comparisons difficult. No clear or convincing external precedent has been identified.
There has been insufficient experience of SIOs from which to draw any relevant conclusions. However, as pointed out, an SIO only varies from other ASIO activities in that illegal behaviour is authorised. ASIO’s position is that an SIO will be reserved for the most serious investigations. The formalities and procedures to be followed before, during and after an SIO and the limitations on conduct that can be authorised support that position. It is also noted that no case has been made that media or other third-party disclosures have compromised other covert ASIO operations over the years.
