A penalty of five years’ imprisonment for a person who discloses information relating to a special intelligence operation would have a chilling effect on media freedom, writes Keiran Hardy.
OPINION: The Parliamentary Joint Committee on Intelligence and Security (PJCIS) will publish its report on the National Security Legislation Amendment Bill (No. 1) 2014 (Cth) sometime during this sitting of parliament. The bill, introduced in the last sitting of parliament, has attracted significant criticism for the potential impact of proposed offences on media outlets.
The main fear, fuelled by the fallout from the WikiLeaks and Snowden affairs, is that journalists could be imprisoned for reporting intelligence abuses or mistakes revealed by a “whistleblowing” intelligence officer, even when doing so would be in the public interest.
While the bill contains a wide range of proposed changes, these more specific concerns relate to the “special intelligence operations” (SIO) provisions. The proposed SIO regime would give ASIO officers civil and criminal immunity for acts done in the course of special undercover operations. These would be authorised by the Director-General or Deputy Director-General of Security.
These powers are broadly based on the “controlled operations” regime for Australian Federal Police officers in the Crimes Act 1914 (Cth), although an SIO could be authorised for a longer initial period and would not require intermittent renewal by the Administrative Appeals Tribunal.
The key provision is a proposed Section 35P, which would insert a new disclosure offence into the Australian Security Intelligence Organisation Act 1979 (Cth). This offence would provide a maximum penalty of five years’ imprisonment where a person discloses information, and that information relates to a special intelligence operation.
An aggravated offence, punishable by ten years’ imprisonment, would apply where such a disclosure endangers health or safety or prejudices a SIO. The aggravated offence would also apply where the person intends such results. This is framed as an alternative so the prosecution would not need to prove such intent for the higher penalty to apply.
Both offences would apply to any person, not just intelligence officers or government contractors. There is no exemption for information disclosed in the public interest.
There is only one legal trick to reading these provisions; otherwise, they are as broad as they sound. The qualification is that the person must be reckless as to whether the information relates to an SIO – that is, the person must be aware of a “substantial risk” that the information relates to an SIO, and then decide to publish that information anyway.
Given that the major concern is about journalists reporting on the conduct of intelligence agencies, it does not appear that this would be a difficult requirement for the prosecution to satisfy.
The offences could certainly, therefore, apply to a whistleblower scenario where a journalist publishes classified information that he or she received from an intelligence officer. If that information related to an SIO, and the journalist was aware of a substantial risk that it related to an SIO, the journalist could face five years in prison.
If disclosing that information endangered the safety of an ASIO officer involved in the undercover operation, such as by revealing some information about his or her identity, the journalist would face twice that penalty.
In either case, the journalist need not intend to endanger health or safety for a serious criminal penalty to apply.
If enacted, the offences will likely have a significant chilling effect on the freedom of media outlets to publish information relating to Australia’s intelligence agencies. Many would argue that this is a positive and justifiable outcome with regard to WikiLeaks-style scenarios, where a journalist would be publishing classified information communicated to them illegally.
But the proposed provisions will also have an impact more broadly on any journalists reporting on national security issues. Consider, for example, if a reporter was informed about dawn raids on the houses of terrorist suspects. They might decline to publish that information for fear they will be disclosing information that relates to an SIO.
Much of the fear and concern about the SIO disclosure offences is therefore justified, although much confusion has surrounded the government’s proposed changes. This has hindered meaningful debate. The confusion is largely because Section 35P has been portrayed as part of a crackdown on intelligence whistleblowers, when this is really the justification for other proposed changes contained in the bill.
Schedule 6 proposes to strengthen and modernise existing offences relating to the disclosure of information by intelligence officers. It would introduce new disclosure offences for copying or recording classified information. These proposed changes are the government’s core package to prevent intelligence whistleblowing and they would not apply to journalists, unless it could be shown that one entered into an “agreement or arrangement” with an intelligence agency.
Section 35P poses a significant issue for freedom of the press. If enacted it will operate alongside the other disclosure offences in Schedule 6 of the bill, but it is designed more to ensure SIO secrecy than to prevent Snowden-style revelations.
In this respect, Section 35P is more akin to the disclosure offences attached to ASIO’s questioning and detention warrant powers, or the AFP’s preventative detention order regime, than it is to these other anti-whistleblower measures.
What this suggests is that criticisms of Section 35P are indeed warranted, but some of this criticism has been confused due to significant hype surrounding the WikiLeaks and Snowden affairs. There are already existing offences that could apply to journalists who retain or reveal information disclosed to them by intelligence officers.
Under Section 79 of the Crimes Act, for example, a journalist could face seven years’ imprisonment for receiving classified information in circumstances that would constitute an act of espionage. Given the broad scope of espionage offences in Section 91.1 of the Criminal Code, this offence poses a real danger to journalists who report on information disclosed to them by intelligence officers.
In this respect, Section 35P is exacerbating a danger posed to journalists by existing legislation, perhaps because that legislation was not drafted with WikiLeaks-style scenarios in mind. The proposed offence is not, however, a radical new attempt to restrict freedom of the press.
This should not in any way reduce criticism of the government’s proposed changes – but recognition of this fact could help to shift the focus of public debate away from the heated debates on WikiLeaks and Snowden, and towards a more constructive dialogue. The challenge is how to frame appropriate offences and exemptions for disclosing national security information, especially where freedom of the press is at risk.
Keiran Hardy is a PhD candidate and Sessional Lecturer in UNSW's Faculty of Law.
This article was originally published on The Conversation.