The report by the Independent National Security Legislation Monitor –Roger Gyles QC - on the controversial section 35P provisions of the ASIO Act was tabled in the Senate on 2nd February. These provisions created draconian offences with penalties of 5 and 10 years imprisonment for disclosure by any person of any information relating to ASIO ‘Special Intelligence Operations’ (SIO) at any time.
NSWCCL, along with the other councils for civil liberties, strongly opposed both the SIO regime and these provisions for their chilling effect on the media and on reasonable scrutiny of ASIO. The controversy around these offences forced the Prime Minister to ask the INSLM to review their impact on journalists.
The report is thorough and suggests the INSLM gave proper and serious consideration to the informed criticisms of the SIO regime and the obnoxious disclosure offences. His findings on the offences are consistent with our views. His recommendations remedy some of the worst aspects of the offences – but sadly fall short of repealing them.
The Government has said it will implement the INSLM’s recommendations in full.
The INSLM supports the covert Special Intelligence Operation (SIO) regime as necessary and proportionate and the safeguards against abuse as appropriate. This is disappointing but not surprising. The CCLs remain opposed to the secret SIO regime and will continue to campaign for its repeal
The INSLM’s conclusions in relation to section 35P are more critical:
‘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.’
The INSLM concludes that in so far as it applies to journalists and other ‘outsiders’ s35P “is not satisfactorily justified, including by precedents in Australia or elsewhere.” Specifically:
“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.” and
“…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.”
We agree. The CCLs consider this conclusion is grounds for the repeal of the offences.
The INSLM finds the basic problem with s35P is its failure to distinguish between ‘outsiders’ (including journalists) and ‘insiders’. His focus on ‘outsiders’ rather than just journalists is significant.
The CCLs argued that the unacceptable impact of the provision went beyond journalists and included other professional and advocacy groups – and whistle-blowers – and that the terms of reference were therefore too narrow. This view has been incorporated to some extent by this approach.
The report recommends separate insider and outsider offences. The outcome is to ameliorate the impact on ‘outsiders’ but not insiders.
Both the basic and aggravated offences will remain unchanged in relation to insiders. This leaves the potential for future insider whistle blowers –the main source of revelations about abuse and wrongdoing within intelligence agencies – bleak.
For ‘outsiders’ the basic offence- s35P(1) - will be amended by the addition of a physical element: “that the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of an SIO”. Recklessness would be the default fault element for this. Currently the disclosure of ANY information about an SIO – even if it has no harmful impact on anything- is an offence with a possible penalty of 5 years imprisonment.
This is a significant improvement – though it remains likely that many journalists and outsider whistle-blowers will be reluctant to take the risk of disclosure given the ‘recklessness’ fault element and the 5 years penalty.
The aggravated offence s35P(2) for ‘outsiders’ will require knowledge that the disclosure relates to a SIO instead of the current recklessness element if the disclosure ‘endangers the health or safety of any person or prejudices the conduct of a SIO (s35P(2)(c) (ii).
This means an outsider will have to had either intent to do harm or actual knowledge that the disclosure relates to a SIO to be guilty of the aggravated offence.
These recommendations will remove some of the worst aspects of the offences. They will allow 'outsider' disclosure of information when no harm to persons or the operation is intended or likely.
It is, however, a long way from the joint CCLs recommendations. From a civil liberties perspective the secret SIO regime which provides immunity for unlawful acts for ASIO officers is the core problem.
On a broader front, the report does not address the accumulating statutory constraints on journalism and legitimate whistle-blowing from the ever-expanding suite of security and counter-terrorism laws. We did urge the new INSLM to consider a comprehensive review of all provisions within these laws which erode free media and protections for whistle-blowers with a view to establishing comprehensive, effective shield laws for journalists and protections for whistle-blowers.
Dr Lesley Lynch
Government response (link no longer available)