Despite changes, terror law will still curb press freedom

The government earlier this week published a report from Roger Gyles, the Independent National Security Legislation Monitor, on the controversial Section 35P of the ASIO Act.

Attorney-General George Brandis intends to introduce amendments to the act that incorporate Gyles’ recommendations. This will go some way to making it more difficult to prosecute journalists under Section 35P. But, ultimately, the proposed changes will do little to reduce its significant impact on press freedom.

Remind me again – what is Section 35P?

Section 35P, introduced in 2014, gives immunity to ASIO officers who engage in unlawful conduct during the course of specially approved undercover operations. It also provides for five years’ imprisonment for anyone who discloses any information that relates to a Special Intelligence Operation (SIO).

An aggravated offence, punishable by ten years’ imprisonment, is available where such disclosure endangers health or safety or prejudices the operation.

The section has attracted significant controversy due to its impact on press freedom. Journalists face five years in jail for reporting any information that relates to an SIO, or twice that penalty if the disclosure would cause harm – even if the information would reveal that ASIO officers engaged in unlawful or inhumane conduct outside an operation’s scope.

Because of this, the offence is likely to have a wider chilling effect on media organisations’ ability to report on national security issues.

What changes have been recommended?

The major recommended structural change is to redesign Section 35P so that it targets two different categories of people: “insiders” and “outsiders”. This would mean that the offences in the section currently will apply only to intelligence employees or contractors. The offences’ amended version will apply to journalists and any other individual.

The change to the main offence in Section 35P means it will only apply when “outsiders” make a reckless disclosure that endangers health or safety or prejudices an SIO. Recklessness means the person is aware of a substantial risk of those circumstances arising and chooses to publish the information anyway.

This will make it more difficult to prosecute journalists compared to the offence as it stands. However, it does not address the major issue with the offence – that Section 35P does not provide any scope for journalists to disclose information in the public interest.

It may be that a journalist is aware of a substantial risk that disclosing information may prejudice an SIO, but believes in good conscience that the public should be informed about some unlawful or inhumane conduct in which ASIO officers are involved – such as torturing or blackmailing a suspect.

No change is to be made to the fault requirements for intelligence employees or contractors. Section 35P as applied to “insiders” will therefore be superfluous. Several other serious offences already apply to intelligence employees and contractors who disclose information obtained during the course of their employment.

Gyles also recommended the offences include an exemption for “outsiders” who disclose information that has already been disclosed by others. This exemption will have little practical effect. It is unlikely it would ever be in the public interest to prosecute a journalist for re-reporting information already in the public domain.

The government has indicated this exemption will only apply to those who take reasonable steps to ensure the secondary publication is not likely to cause harm. To avoid conviction, it will not be enough for a journalist to show that the information was already in the public domain. A journalist would also need to demonstrate that positive steps to avoid a risk of harm were taken prior to disclosure.

Still more that could be done

Gyles recognised that a defence for disclosing information in the public interest would be a useful addition to the offence, but considered this no longer necessary given the higher fault requirement to be introduced.

This is emphatically not the case. The higher fault requirement will require only that a journalist or other “outsider” was reckless in disclosing material that leads to a risk of harm. This will not provide any greater scope for journalists to prove ASIO officers engaged in unlawful conduct.

Until a public interest exemption is included in Section 35P, the offence will continue to have a significant impact on press freedom and a chilling effect on media organisations’ ability to report on ASIO’s activities.

Such an exemption could be drafted narrowly to allow the reporting by professional media organisations of significant unlawful activity, corruption or other serious misconduct in which ASIO officers are involved. This would strike an appropriate balance between protecting the SIO regime’s secrecy while allowing journalists to report responsibly on issues of public importance.