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Thursday, 25 September 2014
Page: 7239

Senator LUDLAM (Western Australia) (19:44): Now we get to one of the most serious parts of this debate and one of the areas where I struggle to understand how a government—that 18 or so months ago, when there were proposals to reform some elements of the architecture of media regulation in this country, shouted to the rooftops about curtailment of press freedom—would seek to bring provisions as draconian as what we see before us tonight and that have been condemned from one end of the country to the other. Effectively—and I will read a few quotes in shortly—it is proposed to criminalise the reporting of one of these special intelligence operations, the transmission about it, so this would relate not necessarily to journalists, because obviously they are not named in the bill, but people sharing Facebook information about one of these operations may well find themselves falling foul of the law.

By leave—I move Australian Green amendments (3) to (5) together:

(3) Schedule 3, item 3, page 69 (lines 19 to 23), omit subsection 35P(1).

(4) Schedule 3, item 3, page 70 (line 6), omit "Subsections (1) and (2) do", substitute "Subsection (2) does".

(5) Schedule 3, item 3, page 70 (line 20), omit "(1) or".

It effectively relates to the criminalisation of the reporting of national security issues. We will do this in two tranches and I will speak at more length on the first. There is a later batch of amendments that relate to similar matters, and I will reserve my comments on those now. These ones relate specifically to reporting of SIOs and even their mere existence.

Schedule 3 creates new offences relating to disclosing information on special intelligence operations or SIOs with a penalty of five years imprisonment. Schedule 6 creates new offence provisions and updates existing offences relating to the unauthorised disclosure of intelligence information, and we will come to those a little later in the debate.

Under the proposed subsection 35P(1):

a person will commit an offence if he or she:

discloses information and

the information relates to an SIO.

The maximum penalty for the offence will be imprisonment for five years.

These offences are by far the most controversial of the proposed scheme—and, I would argue, of the proposed legislation. Two major concerns have been raised: the offences do not contain exceptions for public interest disclosures, which I think Senator Xenophon will try and address in a forthcoming amendment; or whistleblowing by ASIO employees. They apply to any person and would thereby capture disclosures by, for example, journalists. Many submitters made that point to the PJCIS.

I go back to earlier stages of the debate yesterday where we were discussing the document that the Scrutiny of Bills Committee had prepares when evaluating this bill. They identified 19 areas over which they had grave concerns. One of them was this very issue, subsection 35P—the committee sought a fuller justification from the Attorney as to why a penalty of imprisonment for five years is considered appropriate, given the breadth of application of the offence provision.

What this means in practice, which was stated very bluntly by a number of the submitters—and the first contribution that I would like to read is submission no. 17 by combined media organisations and signed by the following: AAP, ABC, APN, Astra, Bauer Media, Commercial Radio Australia, Fairfax Media, FreeTV, the MEAA, News Corp Australia, SBS and the West Australian.

Under a section of their submission, which they have entitled ' Jailing journalists for doing their jobs,' they say:

The insertion of proposed section 35P could potentially see journalists jailed for undertaking and discharging their legitimate role in a modern democratic society—reporting in the public interest. Such an approach is untenable, and must not be included in the legislation.

I can say to our colleagues in the press gallery tonight that this is included in the legislation and that we may be about to legislate away your extremely important role in our democracy.

They go on to say:

This alone is more than adequate reason to abandon the proposal as the proposed provision significantly curtails freedom of speech and reporting in the public interest.

This is particularly so as the proposed section 35P prohibits any disclosure of information relating to an SIO, not just reporting in the public interest.

It is a blanket prohibition. The trick is: how would you know if you had done that, because the very existence of SIOs would be suppressed?

These entities make up by far the largest fraction of those working in the parliamentary press gallery—I am not sure where they all are tonight but, nonetheless, their submission speaks for itself. They go on to say:

In addition, SIOs by their very nature will be undisclosed. This uncertainty will expose journalists to an

unacceptable level of risk and consequentially have a chilling effect on the reportage of all intelligence and

national security material. A journalist or editor will simply have no way of knowing whether the matter

they are reporting may or may not be related to an SIO. We express this as information that ‘may or may

not be’ related to an SIO because:

It may or may not be known if the information is related to intelligence operations, and whether or not that intelligence operation is an SIO;

‘relates to’ is not defined and therefore the breadth of relevance is unknowable;

It is unclear whether SIO status can be conferred on an operation retrospectively—i.e. if information has been ‘disclosed,’ whether any operation that it may be associated with or related to can be retrospectively allocated SIO status; and

It is likely that clarity about any of these aspects would only come to light after information is

Disclosed—particularly in the case of reporting in the public interest.

This submission is damning. I cannot for the life of me understand why the opposition is lining up and supporting this uncritically. Perhaps Senator Collins can inform us, but I would like Senator Brandis to tell us how those in this press gallery and working journalists around the country will know in advance whether what they are deciding to report in tomorrow's paper may or may not be related to an SIO. How will they know without simply publishing and hoping for the best?