INSLM welcomes government response to secrecy review
Win for journalism
The Independent National Security Legislation Monitor (INSLM), Jake Blight, has welcomed the Government’s decision to accept his recommendation to repeal an offence in the Criminal Code that makes it an offence for journalists to "receive" certain sensitive or classified information. Key recommendations for reforms to offences that apply to officials have also been accepted.
‘I want to make it absolutely clear that some secrecy about intelligence agencies and law enforcement operations is necessary’, said Blight. ‘Police and intelligence agencies do important work and the safety of individuals and the success of critical operations can depend on secrecy. But that said, the laws must be necessary, proportionate, certain and clear.’
Currently it is a crime for journalists and other non-officials to ‘receive, possess and copy’ certain sensitive or classified information. During the INSLM’s recent independent review of 11 secrecy offences in Australia’s Criminal Code, journalists and organisations that deal with whistleblowers raised concerns about this offence.
‘Excessive secrecy laws can undermine trust and confidence in the important work of national security and law enforcement agencies and have a chilling effect on public interest journalism. Repealing this secrecy offence is a balanced and reasonable change. It will still be a crime to recklessly or intentionally disclose information that harms national security. There will still be a defence for journalists who reasonably believe the disclosure is in the public interest.’
The INSLM’s 6-month independent review made 15 recommendations and the Government has agreed or agreed in principle to almost all. These recommendations go to the necessity, proportionality and certainty of offences as well ensuring there are appropriate safeguards.
The Monitor is an independent statutory officer with responsibility to monitor and review counterterrorism and national security laws.
The INSLM is currently reviewing special Australian Federal Police and Australian Criminal Intelligence Commission cybercrime powers and is also at the early stages of a review of espionage, foreign interference and sabotage offences. The INSLM is also planning to commence a review of the definition of terrorism in the middle of 2025.
Background
About INSLM
The Independent National Security Legislation Monitor (INSLM) reviews the operation, effectiveness and implications of national security and counter-terrorism laws. INSLM reviews consider whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats and remain necessary. The INSLM has access to all relevant material, regardless of national security classification, can compel answers to questions and hold public and private hearings. INSLM reports are tabled in Parliament. The INSLM does not have a complaints function, but welcomes submissions to reviews.
Mr Jake Blight was appointed as Monitor on 26 November 2023 for a three-year term. Mr Blight is the first full-time Monitor since the establishment of the role in 2010. See: About | INSLM
The Secrecy Offences Review
In June 2024 the report of the INSLM review of the secrecy offences in Part 5.6 of the Criminal Code Act 1995 (Criminal Code) was tabled in parliament. These laws make it a crime to deal with or disclose certain government information. Some of these offences carry a penalty of up to 10 years imprisonment.
The final report makes 15 recommendations. Some of the issues identified in the review include significant uncertainty about the scope of some offences and conflict with rule of law principles relating to certainty and clarity.
Key recommendations include: removing reliance on ‘security classification’ alone as the basis for an offence; narrowing offences applicable to security and intelligence agency information to focus on covert intelligence activities; and, repealing certain offences that currently apply to people who do not work for the government, including journalists.
For a full list of recommendations and summary of reasons see the ‘overview and recommendations’ section of the report. The INSLM website also contains copies of submissions and transcripts of public hearings from 25 and 26 March 2024.
Upcoming reviews
The INSLM is currently reviewing special powers given to the Australian Federal Police and Australian Criminal Intelligence Commission to disrupt serious crime online; identify offenders through intelligence gathering; and to takeover online accounts to gather evidence. See the Issues Paper here.
A review of espionage, foreign interference and sabotage offences in the Criminal Code is at an early stage.
The Monitor has announced that he intends to conduct a review of the definition of terrorism, commencing mid 2025. See INSLM 2023-24 Annual Report (p10)