Report on the impact on journalists of section 35P of the ASIO Act

This report discusses the impact on journalists of the operation of section 35P of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) concerning offences for the disclosure³ of information relating to a special intelligence operation (SIO).

³ This report assumes that the Commonwealth authorities are correct in contending that ‘disclose’ in section 35P covers all communication of information of the requisite kind by anybody to anybody else regardless of the knowledge of either party as to that information.

The impact of section 35P on journalists is twofold:

1. 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.
2. Journalists are prohibited from publishing anywhere at any time any information relating to an SIO, regardless of whether it has any, or any continuing, operational significance and even if it discloses reprehensible conduct by ASIO insiders.⁴

⁴ ‘Insiders’ include ASIO employees, contractors and people who have entered into an agreement or arrangement with ASIO. ‘Outsiders’ are third parties such as journalists.

The basic problem with section 35P is that it does not distinguish between journalists and others (outsiders) and ASIO insiders. The application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere.

The SIO scheme is necessary and proportionate to the present threats to security. The statutory and administrative procedures in force are appropriate safeguards against abuse. A secrecy provision relating to the scheme is not inappropriate. However, section 35P is not justified. 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.

Section 35P 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.

Three basic flaws need to be addressed. The first is the absence of an express harm requirement for breach (of the basic offence) by a journalist or other third party. The second is that recklessness is the fault element in relation to the circumstance described in section 35P(2)(c)(ii) (that is, in relation to the latter harm requirement in the aggravated offence). The third is the prohibition of disclosure of information already in the public domain.

Section 35P should be redrafted to treat insiders and outsiders separately, with one part dealing with third parties and another part dealing with insiders. There should be a basic offence (penalty five years imprisonment) and an aggravated offence (penalty 10 years imprisonment) in relation to both insiders and outsiders.

The basic offence and the aggravated offences for insiders would be as per current section 35P.

The basic offence for outsiders would have the same elements as section 35P(1), but with the additional 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 in relation to this last physical element.

The aggravated offence for outsiders would have the same elements as section 35P(2) except that the fault element for (c)(ii) should be knowledge rather than recklessness (in other words, the fault element for the circumstance that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of the operation should be specified to be knowledge).

There should be a defence of prior publication (not available to a member or ex-member of the intelligence and security services in respect of information available to them in that capacity).

This defence should require the defendant to satisfy the court that:

• the information in question had previously been published 
• having regard to the nature and extent of that prior publication and the place where it occurred, the defendant had reasonable grounds to believe that the second publication was not damaging, and
• the defendant was not in any way directly or indirectly involved in the prior publication.