The federal parliamentary committee charged with reviewing the first stage of the government’s national security reforms has recommended a larger role for the Inspector-General of Intelligence and Security and wants limitations on the controversial proposals relating to “special intelligence operations” (SIOs), including media reporting of them.

In a report released this morning, the Joint Committee on Intelligence and Security made 16 recommendations to amend the National Security Legislation Amendment Bill (No. 1) 2014, referred to the committee in July by Attorney-General George Brandis. Of greatest interest will be the amendments the committee recommends to the laws around ASIO’s covert operations. The operations, termed “special intelligence operations”, would involve covert officers being permitted to engage in minor law-breaking without legal sanction, and are closely modelled on current arrangements for Australian Federal Police covert operations. More controversially, the bill proposes harsh sanctions for anyone revealing information about SIOs, even unwittingly, including journalists, a proposal that attracted critical submissions from Australia’s major media companies. At one of two public hearings into the bill, the committee expressed significant concerns about the draconian nature of the SIO restrictions.

As a result, it has recommended greater oversight of SIOs, with the Attorney-General required to give approval, not the Director-General of ASIO, the IGIS is to be advised of the covert operations and to receive six-monthly reports on them, and to have access to, and to regularly inspect, ASIO records on covert operations. The committee also recommends an expansion of the exemptions to the offence of revealing information about SIOs, which come with a five-year jail term. Revealing information for the purpose of obtaining legal advice, or revealing information to the IGIS, will be included. IGIS’ funding should be increased to enable it to better oversee ASIO in areas like covert operations, the committee also recommended.

However, there would be no exemption for journalists or whistleblowers: instead, the Commonwealth Director of Public Prosecution would be required to take into account “the public interest, including the public interest in publication” before initiating a prosecution for revealing information about an SIO. The committee also recommended that an issue that took up considerable discussion at one hearing — the meaning of “reckless” in relation to revealing information unwittingly, be clarified to provide a higher burden of proof in relation to revealing information about an SIO. In the committee’s view, these would provide “an appropriate level of protection for press freedoms while balancing national security”, without a specific exemption for public interest journalism.

The committee also wants the bill tightened in other areas. Another controversial issue, the new concept of an “ASIO affiliate”, should be tightened to only apply to individuals — specifically ruling out other agencies or foreign agencies from receiving that status. An authorisation to access a third-party computer in order to reach a computer identified in a warrant would be slightly narrowed “to the extent that is necessary for the collection of intelligence in respect of a specified security matter”; ASIO would also have to report details of accesses of third-party computers and disruption of targeted computers to the Attorney-General.

However, the more stringent reforms suggested by some members of the committee during hearings failed to make the report. Liberal Senator David Fawcett’s suggestion of more clearly delineating “ASIO affiliates” and people exercising ASIO powers — something then-ASIO head David Irvine objected to — hit the fence. The differences between ASIO’s “special intelligence operations” and the Australian Federal Police “controlled operations” scheme around external reporting obligations, which Labor Senator Penny Wong explored, remain unresolved. And the attempt by Labor’s Anthony Byrne to introduce a level of external oversight to SIOs by requiring an external “issuing authority” to approve them has only made it as far as the Attorney-General, not a figure too many would regard as sufficiently external and independent.

What will likely attract continuing media interest, however, is that journalists revealing SIOs still face five years’ jail. The “chilling effect on free speech” of the SIO laws, of which even News Corporation felt moved to warn about, is likely to attract further debate.

Peter Fray

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