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Australia: Submission to the Office of the Independent National Security Legislation Monitor

Honourable Roger Gyles AO QC
Office of the Independent National Security Legislation Monitor
PO Box 6500
Canberra ACT 2600
 
Re: Impact of section 35P of the ASIO Act – offences for the disclosure of information relating to a special intelligence operation
 

Dear Mr Gyles,

This submission raises concerns regarding the impact of the new offences for disclosure of information relating to special intelligence operations. We are particularly concerned about the chilling effect the threat of prosecution will have on journalists, their sources, and people who are in a similar position to journalists because the purpose of their work is to foster legitimate public debate about national security – such as human rights lawyers, activists and academics.

The offences are far broader than is necessary or proportionate to the goal of protecting national security. The offences criminalise journalism and other legitimate public discussion in a manner that is inconsistent with democratic values and human rights law.   

This submission covers the areas of: offences for reporting on special intelligence operations; unjustifiable restriction on legitimate public debate; criminalization of reporting that is in the public interest; human rights standards; international human rights standards; and recommendations.

Offences for Reporting on Special Intelligence Operations 

In October 2014, the Australian Security Intelligence Organisation Act 1979 (ASIO Act) was amended to allow for a new type of intelligence operation called a special intelligence operation (SIO).[1] SIOs involve extraordinary use of executive power, because participants are immune from civil or criminal liability for acts done in carrying out a SIO.[2] In essence, the new SIO provisions of the ASIO Act allow a minister to authorise breaches of Australian law.

The October 2014 amendments also introduced two new offences, now found in section 35P of the ASIO Act — a basic and aggravated offence of disclosure of information “that relates to a special intelligence operation” punishable by five or ten years imprisonment, respectively.[3]

Both offences can be committed by a person who does not know that the information that they are disclosing relates to a SIO, if they are reckless as to that possibility. That means that if a person is aware of a “substantial risk” that information relates to a SIO, they will commit an offence if their disclosure of the information is “unjustifiable” in the circumstances.[4] There is an exemption for disclosures to an Inspector-General of Intelligence and Security official, but no public interest exemption or defence for other disclosures.

The offences are particularly problematic because there is no way for a journalist, lawyer, activist, or academic to determine whether discussion of intelligence operations may involve disclosure of information relating to a SIO. If they are aware of that possibility, they may commit the offence by recklessness. Advice proffered by the Attorney-General’s Department in this respect shows a fundamental disregard for the basic tenets of investigative journalism. The Parliamentary Joint Committee on Intelligence and Security’s report on the bill, that introduced the SIO provisions, records the Attorney-General Department’s advice that, if journalists require clarification regarding whether any particular matter is related to a SIO, they can simply contact an ASIO hotline.[5]

That advice disregards, or reflects a naivety about, how journalists practice their profession. Investigating national security stories involves building trust with sources over time. For example, Peter Finn, the National Security editor at the Washington Post, told Human Rights Watch that: “Sources don’t just materialize…they are often developed.”[6]  Journalists build the trust of sources gradually by demonstrating that they will protect their sources and use information disclosed to them ethically. Consultation with ASIO during the process of developing sources and stories is not feasible, nor is it consistent with effective and ethical investigative reporting.

In any case, some intentional disclosures by whistleblowers and journalists should not be criminalised, if their aim is to expose government abuse. As section 35P exists today, a journalist or human rights advocate has no protection from prosecution, even if they reveal substantial wrongdoing or harm to the public, if that disclosure relates to a SIO. 

Finally, there are no temporal limitations in the offence provisions, or exceptions for information that is already in the public domain. This means that the offences could prevent reporting on a botched SIO even after it was finished, or had been reported in the international media.[7] The offences could also prevent academic discussion of SIOs, even many years after their conclusion.  

Unjustifiable Restriction on Legitimate Public Debate

The potential for prosecution under section 35P will have a chilling effect on the work of investigative journalists, as well as human rights lawyers, activists and academics, and impede reporting that fosters legitimate public debate. Any disclosure of information known or suspected to relate to a SIO can potentially be criminal, pursuant to the basic offence. Section 35P will therefore chill discussions between sources, journalists and editors well before the point of publication. The fact that a disclosure of information merely suspected to relate to a SIO might eventually be held to be “justified” by a court (and thus not reckless), cannot counterbalance the chilling effect of the offences because journalists cannot practically receive legal advice before all of their conversations. Similarly, the Commonwealth’s policy that prosecutions should only proceed where they are in the public interest, provides no reassurance or practical assistance to a journalist who must navigate the challenges of reporting on intelligence operations prospectively.

In a 2014 report titled With Liberty to Monitor All, Human Rights Watch documented how prosecutions of journalists and their sources, combined with increased surveillance, has hampered freedom of speech, and accountable democracy in the United States.[8] Human Rights Watch’s extensive research involved interviews with government officials, lawyers and experienced national security reporters. Journalists emphasised how fear of prosecution (of journalists and their sources), along with uncertainty about the limits of surveillance powers, curtails legitimate investigation, and reporting on national security issues. 

Mass surveillance practices have exacerbated fears that the identity of sources cannot be protected because the government can easily link contacts through surveillance, including the US’s bulk phone metadata program. The result is that sources have become less willing to discuss even unclassified matters of public concern out of fear of reprisal. 

For example, Jane Mayer, an award-winning staff writer for The New Yorker, said:

“The added layer of fear makes it so much harder. I can’t count the number of people afraid of the legal implications [of speaking to me].”[9] Another national security journalist said: “We’re not able to do our jobs if sources are in danger.”[10]

Those concerns were echoed by Australian journalists interviewed by Human Rights Watch about the effect of the section 35P offences. One journalist described the threat of prosecution as “one piece in the puzzle” that makes reporting stories that touch on national security issues increasingly difficult.[11] He described how publicity surrounding the enactment of the offences had caused sources to express confusion or fear of legal consequences when discussing politically sensitive matters — even if there was no reason to think that the subject of the story involved a special intelligence operation (for example, stories regarding the Australian government’s efforts to prevent asylum seekers from arriving in Australia by boat). Criminalising disclosures to journalists can have a chilling effect on free public discussion — particularly criticism of government — that is broader than the actual subject matter that the offences are designed to keep secret. 

News agencies routinely disclose the contents of stories touching on national security issues to the Australian government before publication, to ensure balanced reporting, and to allow the government to make a case that particular information should not be published. Journalists interviewed by Human Rights Watch emphasised that they follow this practice despite the risk that the government might seek an injunction preventing publication, but said that they would be unlikely to ask for ASIO input in the early stages of an investigation. One journalist said that to do so would be to invite ASIO to shut down an investigation by asserting that information was “related to” a SIO, even if the link was “tenuous,” leaving the journalist with no ability to test the veracity of that claim. The journalist also emphasised that if ASIO’s response to an inquiry was ambiguous, it would not protect the journalist, but could prompt surveillance of the journalist or suspected sources, and later be used as evidence demonstrating that the journalist had considered the possibility that the investigation involved discussion of a SIO.[12]

The newly passed data retention law may only exacerbate these fears. The data retention law requires a special “journalist information warrant” to access the metadata of “professional” journalists.[13] The minister must be satisfied that the public interest in issuing a journalist information warrant outweighs the public interest in protecting the confidentiality of the journalist’s source. However, the mere fact that telecom companies must create or retain certain phone records will make it much easier to track contacts between sources and journalists, lawyers, and other public interest activists.[14] 

Criminalisation of Reporting that is in the Public Interest

The aggravated offence is committed if a person “intends to endanger the health or safety of any person or prejudice the effective conduct of” a SIO or if the disclosure “will endanger the health or safety of any person or prejudice the effective conduct of” a SIO. Human Rights Watch accepts that disclosure of a SIO can appropriately be penalised if the purpose of the disclosure was “to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation,” as in disclosure of the operation to a hostile government.

In some circumstances, public disclosures of information that could endanger a person’s health or safety, or prejudice the conduct of an intelligence operation, are justified because such risks are outweighed by the public interest in disclosures of serious government abuse.

In the past decade, journalists, lawyers, activists and academics have been instrumental in exposing international intelligence services’ involvement in torture, disappearances, extraordinary rendition and illegal mass surveillance, including in officially sanctioned operations. These examples demonstrate that disclosures of information related to intelligence operations should not be criminalised merely because the disclosure could prejudice the effective conduct of an operation. In some circumstances, such disclosures are justified by the important public interest in free discussion of government policy and intelligence operations, as well as accountability for government abuses, especially those involving sanctioned breaches of the law. 

Even where a disclosure may seem reckless in terms of posing risks to the health or safety of persons or to the conduct of a SIO, there should always be available a public interest defence. This defence would protect the person who leaks information directly to the public, or to journalists who publish to the public when the public interest in disclosure of the information outweighs any harm to national security (or a similarly important interest, such as public safety) that is shown to actually have occurred as a result of the disclosure. The public interest in disclosures relating to government waste, fraud, corruption, violations of human rights, or illegal activities should presumptively outweigh any interest in secrecy.

International Human Rights Standards

Australia has ratified the International Covenant on Civil and Political Rights (ICCPR), which protects freedom of expression, including “the freedom to seek, receive and impart information and ideas of all kinds.” Limitations on these rights are allowed for “the protection of national security,” but only to the extent that they are “necessary” for that purpose.[15]

The Human Rights Committee (HRC) has emphasised that press freedom — and the ability of the press to obtain information — is essential to freedom of expression and other rights:

“It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential.”[16]

The HRC has emphasised that any restrictions on these rights “must conform to the strict tests of necessity and proportionality… must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.”[17]

The HRC has specifically warned that to comply with their obligations under the ICCPR, governments must ensure that provisions to protect national security are not invoked “to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information.”[18]

In a statement to the United Nations General Assembly introducing his 2013 report, Frank La Rue, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, said:

“…my report also underlines my great concern regarding the increasingly common use of national security as a justification for restricting access to information held by governmental entities. The persistent denial of information on human rights violations potentially involving national security bodies often weakens public trust in State institutions.

National security should never be used as an excuse to prevent or limit the clarification of human rights violations.

In this regard, I recall in my report that sanctions should not be imposed on whistleblowers – individuals who, in good faith, decide to reveal confidential information on violations.”[19]

Mr La Rue also endorsed the Global Principles on National Security and the Right to Information (known as the Tshwane Principles) as a useful tool for States working to improve laws regulating confidentiality on national security grounds.[20] The Tshwane Principles were drafted with input from numerous human rights experts including Mr La Rue and Ben Emerson, the UN Special Rapporteur on Counter-Terrorism and Human Rights.  A copy is enclosed herein.  

The section 35P offences do not comply with international human rights standards.

The government has not demonstrated that the SIO offences, particularly the very broad basic offence, are necessary or justifiable burdens on Australian democracy. In fact, the offences in section 35P go far beyond what is necessary and proportionate to the protection of Australia’s national security interests and do not conform to Australia’s human rights obligations, or the needs and values of a democratic society.

In its report on the Bill which introduced the SIO provisions, the Parliamentary Joint Committee recorded the Attorney-General’s Department’s advice that the SIO offences were not “intentionally designed” to cover journalists unaware that information related to a SIO, and also the Department’s view that the basic offence was necessary because the maximum penalty otherwise available for disclosing information about an intelligence operation (which was then two years imprisonment) was insufficient.[21]

Those comments suggest that there is no basis upon which the very broad basic offence could be considered necessary or proportionate to the goal of protecting national security. The difference between a SIO and other ASIO operations is that SIOs authorise breaches of Australian law and immunise participants from civil or criminal liability in relation to those breaches. That circumstance cannot make harsher penalties for disclosure of information relating to SIOs necessary. To the contrary, the very fact that SIOs authorise breaches of the law means there will be circumstances in which there is a legitimate public interest in some reporting on SIOs, and consistently with international human rights law, that reporting must not be criminalised. To the extent that they can capture journalists, sources, lawyers, activists or academics who disclose information for the legitimate purpose of public discussion of intelligence operations, the offences are broader than is necessary or proportionate. 

Recommendations

To the extent that criminal penalties are sought for disclosure of information related to intelligence operations, they should be available only for the disclosure of narrow categories of information defined by law, where the purpose of a disclosure manifestly appears to be causing significant harm to national security or a comparable state interest.  Even here, a defence should be available where the public interest in the disclosure outweighs the harm to national security shown to actually have occurred.

Human Rights Watch urges the Independent National Security Legislation Monitor to recommend reform of the SIO offence provisions to ensure that they do not discourage legitimate public discussion of government policy and intelligence operations, nor undermine accountability for human rights abuses, fostered by journalists, lawyers, activists and academics. In particular:

  • Repeal the very broad basic offence provision, section 35P(1), and s 35P(2)(c)(ii).
  • Provide for a public interest defence where the public interest in the disclosure outweighs the harm to national security shown to actually have occurred. The public interest in disclosures relating to government waste, fraud, corruption, violations of human rights or illegal activities should presumptively outweigh any interest in secrecy.
  • Limit the time period during which disclosing information about a SIO would be an offence.
  • Provide an exception for reporting information already in the public domain.

Sincerely,

Elaine Pearson
Australia Director
Human Rights Watch
 
 

[1] ASIO Act, Part III, Division 4 (Division 4).

[2] Ibid, s 35K.

[3] Ibid, s 35P(1) and (2); there are exceptions for disclosures: in the administration or execution of Division 4; for the purposes of a legal proceeding arising out of Division 4 or a report of such a proceeding; in accordance with a requirement imposed by law; in connection with the performance of ASIO functions, duties or powers; for the purpose of obtaining legal advice in relation to a SIO; or to and by officials of the Inspector-General of Intelligence and Security: s 35P(3).    

[4] Criminal Code Act 1995, Schedule, s 5.4.

[5] Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the National Security Legislation Amendment Bill (No. 1) 2014, para. 3.84.

[6] Human Rights Watch interview with Peter Finn, Washington, DC, December 17, 2013. 

[7] Reporting by the international media would be an offence under Australian law (s 35P(4)) but experience with other information protected by Australian law, such as by suppression orders, suggests that will not necessarily deter publication by foreign media outlets.

[9] Human Rights Watch interview with Jane Mayer, Washington, DC, January 16, 2014. 

[10] Human Rights Watch interview with a national security reporter, Washington, DC, January 14, 2014.

[11] Human Rights Watch interview with a reporter covering immigration, crime and intelligence issues, Sydney, April 9, 2015.

[12] Human Rights Watch interview with a reporter covering immigration, crime and intelligence issues, Sydney, April 9, 2015.

[13] Telecommunications (Interception and Access) Act 1979, ss 180J – 180W. 

[14] The requirement for a journalist information warrant for telecom metadata only applies to a narrow subset of individuals who may be engaging in journalistic activity (“professional” journalists and their employers). Further, the standards for obtaining such a warrant are not robust - they offer little reassurance to journalists and will not alleviate the chilling effect of the data retention laws on communications between journalists and sources: Telecommunications (Interception and Access) Act 1979, ss 180L(2) and 180T(2).   In any case, the requirement for a journalist information warrant requirement does not protect lawyers, human rights researchers, and other public interest actors who could be affected by section 35P. 

[15] Ibid, art. 19(3)(b).

[16] UN Human Rights Committee, General Comment 34, Article 19: Freedoms of opinion and expression, U.N. Doc. CCPR/C/GC/34 (2011), para. 13.

[17] Ibid, para. 22.

[18] Ibid, para. 30.

[19] Statement of Frank La Rue, Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, 68th Session of the General Assembly, Third Committee, 25 October 2013; https://papersmart.unmeetings.org/media2/703368/statement-by-frank-la-rue-item-69b.pdf

[20] The Global Principles on National Security and the Right to Information (Tshwane Principles); http://www.#/sites/default/files/global-principles-national-security-10232013.pdf 

[21] Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the National Security Legislation Amendment Bill (No. 1) 2014, para. 3.81-3.82.   

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