The government’s national security watchdog has given a scathing review of 2014 changes to ASIO laws that made it risky for journalists to report on anything ASIO does without potentially facing prosecution.

The amendment to section 35p of the ASIO Act, which passed in 2014, dramatically restricted freedom of the press, with journalists facing up to 10 years’ imprisonment for disclosing so-called “special intelligence operations”. An operation can be declared an SIO by ASIO’s director-general of security, or deputy director-general. There is no public interest exemption, and journalists won’t necessarily know if what they are reporting on is an SIO.

Section 35p(1) mandates a maximum five years’ imprisonment for a person found guilty of disclosing information related to an SIO, while section 35p(2) mandates a 10-year jail term if someone discloses information and intends to endanger someone’s health, prejudice the effectiveness of the operation, or is “reckless” as to whether the disclosure of the information could harm someone or an SIO.

Roger Gyles — who was appointed to be the Independent National Security Monitor by former prime minister Tony Abbott when the government was forced to abandon plans to shut down the monitor office in order to pass the data retention tranche of national security legislation — released his report yesterday on the legislation. The report finds that the legislation as it stands creates uncertainty around what journalists can publish without fear of prosecution. Additionally journalists are unable to report on an SIO even in cases where ASIO insiders’ behaviour has been “reprehensible”.

Part of the problem, Gyles notes, is that ASIO routinely declines to comment on media inquiries, and it would be impossible for a journalist to tell from a “no comment” whether the matter he or she is writing about is an SIO. Gyles writes:

“The result is that reporting on ASIO activities is something of a lottery, although the risk may have been exaggerated in some submissions. The uncertainty at the point of possible publication could well have a chilling effect on dissemination of material about security and ASIO’s conduct with no relevant connection to an SIO.”

Gyles says that while the SIO scheme is necessary for national security reasons, section 35p “is not justified” and does not contain adequate safeguards for outsiders like journalists reporting on SIOs.

“The basic problem with section 35P is that it does not distinguish between journalists and others (outsiders) and ASIO insiders”

Gyles says that 35p “is arguably invalid on the basis that it infringes the constitutional protection of freedom of political communication”.

The government has accepted Gyles’ recommendations, but the restrictions will be watered down, not scrapped. Gyles recommended that journalists and others outside of ASIO be treated differently than insiders. Insiders would face the same penalties that exist in the current legislation, but journalists would only be found guilty under 35p(1) of disclosing information about an SIO if the disclosure of that SIO would endanger the health of a person, or prejudice the operation, and the journalist publishing the information did so “recklessly”.

Under 35p(2), a journalist would only be found guilty if they knew that disclosing the information would endanger a person or an operation.

There would also be an added defence of prior publication. That means if, for example, The Age were to follow a story in Crikey about an SIO, The Age would be safe, while Crikey could face prosecution.

Gyle also specifically broke out “outsiders” as a separate category from journalists because he said it would be difficult to define a journalist in the current environment.

“There may be some difficulties applying this test of a ‘journalist’ in some cases, for example, in relation to freelance or self-employed commentators including internet bloggers, who may be remunerated for intermittent reporting work.”

The report isn’t binding in any way, though it appears to have been accepted by Attorney-General George Brandis, who yesterday said the government would accept Gyle’s recommendations and amend the legislation. Journalists’ union the Media Arts and Entertainment Alliance welcomed the report, but said it would wait to see how the amendments were drafted before commenting further.

Greens communications spokesperson Scott Ludlam told Crikey the proposed changes fell way short of what was required, and said that there needed to be specific whistleblower protections to allow public interest disclosures. The government was specifically seeking to avoid an Edward Snowden-style leak with the ASIO changes, Ludlam said:

“The Snowden-type situation [is] where somebody [has] information the government is breaking the law and acting completely outside the remit that people think they are, and that story has to get into the public domain when the internal checks and balances fail. I don’t think we should be trying to prevent a Snowden-type situation here if these agencies need to be held to account.”

The report follows concerns from some journalists about the amendments, with press gallery veterans like Channel Nine’s Laurie Oakes and Guardian Australia‘s Katharine Murphy speaking strongly against the amendments when they were passed (to little public outcry) in 2014.

Not that the media was entirely united in opposition. In an editorial in The Australian, the paper criticised journalists for acting like the enemy was Australia’s own government rather than Islamic State. “The new counter-terrorism laws are not an attack on free speech; they are a protection against an evolving threat,” said the editorial. It criticised Murphy, Oakes and the ABC’s Mark Colvin for speaking up against the new laws.

Some of The Australian’s own journalists later wrote opinion pieces expressing their concerns with the new laws. News Corp was also one of the media organisations that made submissions to the Independent National Security Monitor critical of the amendments.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey