Section 35P
The first of several tranches of new national security was the National Security Legislation Amendment Bill (№1) 2014 introduced in July 2014. There was an initial muted reaction from some media organisations as the legislation seemed to merely seek to update the Asio Act.
But it quickly became clear that this legislation, and the next two tranches that followed it, represented the greatest assault on press freedom in peacetime. It was described as “a terrible piece of legislation that fundamentally alters the balance of power between the media and the government”.[i]
A new section, 35P, was introduced to the Asio Act. It provided jail terms of five or 10 years for the unauthorised disclosure of information about an Asio “special intelligence operation”. It was an offence for disclosures to be made by “any person”. Journalists would be caught up as “persons who are recipients of unauthorised disclosure of information should they engage in any subsequent disclosure”.
It applied to all such operations in perpetuity, so that journalists could never report on an SIO, no matter how historic the operation, nor if any criminal activities or harm to public safety had taken place.
As Attorney-General George Brandis made clear, the new provision while applying generally to “all citizens” was “primarily, in fact, to deal with a [whistleblower Edward] Snowden-type situation.”
Indeed, the second-reading speech for the bill alluded to the whistleblowing of Chelsea Manning and Edward Snowden: “As recent, high-profile international events demonstrate, in the wrong hands, classified or sensitive information is capable of global dissemination at the click of a button. Unauthorised disclosures on the scale now possible in the online environment can have devastating consequences for a country’s international relationships and intelligence capabilities.”
Brandis, Foreign Minister Julie Bishop and former prime minister Tony Abbott had all labelled Edward Snowden a “traitor” while ignoring the Snowden revelations of widespread illegal activity by intelligence agencies including thousands of breaches of privacy rules and appalling misuse of private information. Snowden’s whistleblowing came to light through legitimate journalism making the public aware of what governments have been doing in the name of the people. It would be difficult to dispute the public interest has been well served by these disclosures.
But section 35P not only targets whistleblowers but also the journalists who work with them.
Combined with other amendments to the Asio Act and coupled with metadata retention, it enables government agencies to secretly identify journalists’ confidential sources and prosecute both the journalist and the whistleblower for legitimate public interest journalism.
The subsequent outcry did bring about some changes to the bill. Last minute amendments required the director of public prosecutions to consider the public interest before proceeding with any charges. And Attorney-General Brandis required the DPP to consult the attorney-general of the day before any prosecution of a journalist could occur. But another change had a sting in the tail: a “recklessness” test would be applied for wilful disclosure of information, with the penalty at the upper-end of the scale.
Of course, these so-called “safeguards” would only come about after publication, i.e. after the alleged offence had been done. An added issue is that because an SIO is secret, it’s entirely possible a journalist could publish a news story without knowing the operation has been a designated an SIO and without knowing they were committing an offence.
The s35P inquiry
The issue of s35P and its impact on journalists was referred by former prime minister Abbott to the former Independent National Security Legislation Monitor (INSLM) Roger Gyles QC for consideration. MEAA, through the Australia’s Right To Know lobby group, participated in a joint submission to Gyles’ inquiry and appeared at the public hearing as well as provided answers to additional questions.
In his report released on February 2 2016[ii], Gyles said he was not satisfied that s35P contained adequate safeguards for protecting the rights of individuals.
Gyles found three flaws with the law:
· the absence of an “express harm requirement for breach… by a journalist or other third party”,
· the use of “recklessness” in the aggravated offence, and
· the prohibition of disclosure of information that is already in the public domain.
Gyles said: “There is no particular reason to distinguish information about SIOs from other information as far as ASIO insiders are concerned. No public domain defence is available … The position of outsiders such as journalists is different. Imposing criminal liability for republishing something in the public domain needs to be justified.”
Gyles made recommendations for changes to be made. Gyles found that s35P created uncertainty for journalists as to what could be published about ASIO without fear of prosecution. “The so-called chilling effect is exacerbated because it also applies in relation to disclosures made to editors for the purpose of discussion for publication.”
Gyles also found that journalists would be prohibited from publishing “anywhere at any time” information relating to a special intelligence operation, “regardless of whether it has any, or any continuing, operational significance and even if it discloses reprehensible conduct by ASIO insiders”.
Gyles recommended that s35P be redrafted to create two classes of individual:
· “insiders” who belong to Asio, and
· third-party “outsiders” which would include journalists.
The penalties, however, would essentially remain unchanged: a basic offence would still attract a penalty of five years imprisonment while an aggravated offence attracts 10 years jail time.
More specifically, under Gyles’ new classifications, for insiders the basic offence would remain unchanged from the current s35P but, for outsiders, there would be the proviso that any disclosure of information would have to include the additional physical element of endangering the health or safety of any person, or prejudicing the effective conduct of an SIO. The recklessness test would remain: an aggravated offence for outsiders would be the knowledge that disclosure would endanger health and safety or harm the conduct of an operation.
Gyles recommended the defence of prior publication be available. The defence requires the defendant satisfy the court that the information in question had previously been published (and that the defendant had not been directly or indirectly involved in the prior publication) and that the defendant had reasonable grounds to believe that the second publication was not damaging. Just how and when such information could get into the public domain is unclear.
Gyles’ recommendations were accepted by the Turnbull government.
MEAA’s view on INSLM Gyles’ recommendations
The recommendations by the Independent National Security Legislation Monitor for amendments to section 35P of the Asio Act still mean Australian journalists face jail terms for legitimate public interest journalism.
MEAA believes the INSLM’s recommendations are unsatisfactory because the fact remains that s35P is still capable of criminalising legitimate journalism in the public interest and is still capable of locking up journalists for years in prison for simply doing their job.
MEAA believes the findings of the report by Roger Gyles QC confirm that the spate of national security laws passed by the parliament over the two years had clearly been rushed without proper consideration of their implications.
MEAA believes there needs to be a complete rethink of these laws in light of their impact on freedom of expression and, in particular, press freedom.
MEAA said: “The monitor’s report, while welcome, has not changed the fundamental intent of section 35P which is to intimidate whistleblowers and journalists. Section 35P seeks to stifle or punish legitimate public interest journalism.
“What’s worse is that the monitor’s recommendations create a ‘game of chicken’ for journalists. The defence of ‘prior publication’ only operates once the information in question has been published by a journalist. Any journalist seeking to be the first to publish a legitimate news story would face prosecution while any subsequent story written after that point would be defensible — but only if the second publication was ‘not damaging’ and the defendant was not involved in the original publication.
“The aim remains: to shoot the messenger. A journalist faces the full brunt of the law and a possible jail term for writing the first news story. That clearly has a chilling effect on legitimate investigative journalism.”
MEAA also has concerns about the nature of determining what a “special intelligence operation” is and how journalists can publish legitimate news stories about such an operation not knowing that the activity is a designated SIO that falls under section 35P.
MEAA was also disappointed that the INSLM had also decided to take no action on the definition of “journalist” which is outdated in terms of the way information that could be subject to section 35P could be published.
MEAA added: “The monitor’s office should be properly resourced to conduct an immediate urgent review of all of Australia’s national security laws so that a proper balance can be implemented that allows the intelligence and security services to do their job but not at the expense of Australian democracy or press freedom.[iii]
The INSLM changes are enacted
In September 2016, the Government tabled the amendments to s35P in the Parliament as part of the Counter-Terrorism Legislation Amendment Bill (№1) 2016. According to the Explanatory Memorandum, the amendments would introduce new “protections” requiring “disclosure of information made by members of the community, except those who received the relevant information in their capacity as an entrusted person, will only constitute an offence if the information will endanger the health or safety of a person or prejudice the effective conduct of a special intelligence operation (SIO). The amendments will also include a defence of prior publication available only to persons who did not receive the relevant information in their capacity as an entrusted person”.
The memorandum went on to explain:
“Although the Bill contains four new offences to replace the two existing offences in section 35P, its effect is to increase the burden on the prosecution in relation to ‘outsider’ offences. The Bill retains the existing offences for ASIO insiders, and introduces additional elements that must be proven before an ‘outsider’ can be convicted of an offence.
Existing section 35P contains two offences for the unauthorised disclosure of information relating to an SIO, which apply regardless of whether or not a person holds a position of trust in relation to ASIO information. The basic offence applies when the person is reckless as to whether the information disclosed relates to an SIO. The aggravated offence applies when the person also intended to endanger the health or safety of any person or prejudice the effective conduct of an SIO, or the person knows that disclosure will endanger the health or safety of any person or prejudice the effective conduct of an SIO.
Following the INSLM report, section 35P has been amended to create separate offences for ‘insiders’ (persons who came to the knowledge or into the possession of relevant information in their capacity as an entrusted person) and ‘outsiders’ (persons to whom the information came to their knowledge or into their possession other than in the person’s capacity as an entrusted person). While this results in an increased number of offences, this simply reflects the fact that outsiders will be subject to separate offences and will no longer be held to the same, stricter, standard as ASIO insiders.
The insiders offences are identical to those in existing section 35P. The basic offence contains no harm requirement, and the aggravated offence applies where a person intends to cause harm, or the disclosure will in fact cause harm.
For the new ‘outsider’ offences, the basic offence will contain an additional harm requirement. The basic offence will require the person to be reckless as to whether the disclosure will endanger a person’s health or safety, or compromise the effective conduct of an SIO. A person will not commit an offence if the information they disclose is completely harmless. The aggravated offence will require either knowledge or intention in relation to the harm. This is consistent with the INSLM’s recommendations and reflects the higher standard of conduct that insiders should be held to in relation to their use, handling and disclosure of sensitive information.
Penalties of five and 10 years imprisonment are not so significant that they would constitute arbitrary detention or cruel, inhuman or degrading treatment or punishment, or an unlawful restriction on the freedom of movement. Persons participating in an SIO do so on explicit and strict conditions that are additional to any other obligations applying to an ASIO affiliate or employee, and they are potentially subject to greater risks should information pertaining to an SIO be disclosed. The penalties 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.
The maximum penalty of five years imprisonment applying to each basic offence and the maximum penalty of 10 years imprisonment for each aggravated offence reflects an appropriate gradation. These penalties reflect an appropriate gradation with offences relating to unauthorised dealing in sections 18A and 18B, which carry a maximum three-year penalty. The unauthorised disclosure of information regarding an SIO is considered more culpable than the unauthorised dealing with information pertaining to ASIO’s statutory functions.
The penalty of up to 10 years imprisonment applying to the aggravated offence maintains parity with the penalty applying to the offence of unauthorised communication in section 18 of the ASIO Act. The heavier penalty is appropriate considering the greater level of harm, with the aggravated offence requiring either the intention to jeopardise a person’s safety or prejudice the effective conduct of an SIO, or the actual compromise of a person’s safety or prejudice to the SIO.”
The Explanatory Memorandum also went on to explain the defence of “prior publication”.
“The new defence set out under subsection 35P(3A) specifies that the outsider offences (subsections 35P(2) and (2A)) will not apply to a person disclosing information, if the information has already been communicated or made available to the public (prior publication) and the person was not involved, directly or indirectly, in the prior publication. The defendant will bear the evidential burden and must adduce or point to evidence that suggests that the defendant believed, on reasonable grounds, that the disclosure would not endanger the health or safety of any person or prejudice the effective conduct of an SIO. Whether a belief is on reasonable grounds will depend, to an extent, on the nature, extent and place of the prior publication.
The defence available under subsection 35P(3A) seeks to strike a balance between freedom of expression on the one hand, and recognition that further dissemination of harmful information could cause additional harm on the other hand. Before disclosing information that has already been published, a person must form a reasonable view that the subsequent disclosure will not cause additional harm. This is because in some cases, even where information is considered to have been published and in the public domain, subsequent disclosure will still result in harm. For instance, this would be the case where information is brought into the public domain inadvertently — such as where a classified document or information relating to an SIO is revealed as a result of technical or administration errors. Where steps are quickly taken to reverse the publication, subsequent mass disclosure of that information is likely to bring that information to the attention of a much greater number of people and could result in considerable new or additional harm.
MEAA believes the core issue remains — public interest journalism has been criminalised because journalists could face lengthy imprisonment for reporting a legitimate news story.
The amendments passed both houses on November 22, 2017.
Penalty to be extended to the AFP
Subsequently, NSW Senator David Leyonhjelm proposed extending s35P penalties to operations conducted by the Australian Federal Police.
While the senator believes this is a matter of bringing the AFP legislation into line with the Asio law, MEAA believes his suggestion is unhelpful in that it merely further extends the ability of the government to criminalise public interest journalism in relation to not one but two government agencies.
In February it was reported Attorney-General George Brandis had accepted the suggestion and was drafting amendments to bring it about.
A new INSLM
On February 24, 2017, the Prime Minister announced Dr James Renwick SC had been appointed the new acting Independent National Security Legislation Monitor, replacing Roger Gyles QC. Gyles was INSLM from August 20 2015 to October 31 2016 — barely 14 months of what should have been a two-year term (Gyles’ predecessor served three years). The role is part-time. Gyles’ departure coincided with his office losing two advisers who had been seconded from the Department of the Prime Minister and Cabinet.
Gyles final annual report complained of lack of resources: “More work is needed in conjunction with the Attorney–General and the Department of the Prime Minister and Cabinet to develop the office of the INSLM to the point where it has the capacity to satisfactorily support the Monitor in carrying out the statutory duties and functions of the Monitor.
“An effective ongoing office is also necessary to ensure the seamless departure of one Monitor, and replacement with another so as to avoid the administrative problems that I encountered after my appointment that were outlined in my last annual report,” Gyles wrote.
During his tenure, four security legislation monitoring investigation reports were completed:
• questioning and detention powers in relation to terrorism (released February 2017),
• amendments to Foreign Fighters Bill (May 2016),
• the impact on journalists of section 35P of the Asio Act (February 2016),
• control order safeguards (January 2016).
Renwick has been appointed for an initial period of 12 months “while preparatory arrangements for his permanent appointment are made” because it is expected it could take that long before he is sufficiently security-cleared to take up the INSLM role.
Ongoing concerns with the ASIO’s powers
Overall, the Asio Act continues to be loaded with assaults on press freedom. Since 9/11 MEAA has regularly expressed concerns about ASIO and the powers that it has been granted under the act.
Section 92 of the Asio Act provides a penalty of 10 years imprisonment for someone publishing, broadcasting or making public the identification of an ASIO officer.
By contrast, under s35K of the act, Asio officers engaged in a “special intelligence operation” are granted immunity provided they didn’t kill, torture, sexually assault or seriously injure someone, or substantially damage property, and that they haven’t induced anyone to commit an offence.
Of course, the real issue here is that if an Asio officer does any of these things, a journalist cannot report that fact without facing imprisonment under section 35P.
As MEAA said a decade ago in our second State of Press Freedom in Australia annual report in 2006: “It is simply unacceptable that any journalist be threatened with imprisonment for publishing something in the public interest — especially in Australia where the right to inform and be informed is a cornerstone of our democracy. If a journalist did violate the laws, it is entirely possible that, under the very same laws, their arrest could be withheld from public debate.”[iv]
[i] Greg Sheriden, The Australian, October 9 2014 http://www.theaustralian.com.au/national-affairs/opinion/limits-on-media-are-a-blow-to-the-peoples-right-to-know/story-e6frgd0x-1227084257012
[ii] https://www.dpmc.gov.au/pmc/publication/report-impact-journalists-section-35p-asio-act
[iii] https://www.meaa.org/mediaroom/asio-redraft-signals-need-for-rethink/
[iv] https://www.meaa.org/resource-package/press-freedom-report-2006/
