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Government response to INSLM report on the impact on journalists of section 35P of the ASIO Act 1979



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Contact: T: +61 2 6277 7300 E: agmedia@ag.gov.au

SENATOR THE HON GEORGE BRANDIS QC ATTORNEY-GENERAL LEADER OF THE GOVERNMENT IN THE SENATE

MEDIA RELEASE

GOVERNMENT RESPONSE TO INSLM REPORT ON THE IMPACT ON JOURNALISTS OF SECTION 35P OF THE ASIO ACT 1979

Today the Government tabled and responded to the Independent National Security Legislation Monitor’s Report on the impact on journalists of section 35P of the Australian Security Intelligence Organisation Act 1979 (ASIO Act).

Importantly, the Monitor agreed that the Special Intelligence Operation (SIO) scheme is necessary and proportionate to the present threats to security. He supported the continuation of disclosure offences and penalties which protect persons participating in an SIO and ensure the integrity of ASIO’s covert operations. However, even more safeguards are needed to protect the rights of outsiders in relation to section 35P.

The Government has accepted and will implement all of the recommendations made by the Monitor providing added safeguards to journalists reporting on national security.

New amendments to the ASIO Act will establish two separate offence regimes for ‘insiders’ and ‘outsiders’ in recognition that ASIO employees and its affiliates should be held to a higher standard in relation to the disclosure of sensitive information. The Government will ensure that an inadvertent disclosure by an outsider will not result in a criminal offence.

A defence of prior publication will also be available to journalists and other members of the community.

The introduction of the SIO scheme followed recommendations from the Parliamentary Joint Committee on Intelligence and Security in 2013 and 2014, and is broadly modelled on the law enforcement controlled operations regime enacted in 2010.

The Government firmly supports independent oversight of our national security legislation and will continue to work with the Monitor to improve and strengthen our national security architecture.

A copy of the Government response to the Monitor’s recommendations is attached.

2 February 2016

Contact: T: +61 2 6277 7300 E: agmedia@ag.gov.au

Australian Government response to Independent National Security Legislation Monitor’s Report on

the impact on journalists of Section 35P of the Australian Security Intelligence Organisation Act 1979

Recommendation Government response

Recommendation 1

Section 35P of the ASIO Act should be redrafted to treat ‘insiders’ and ‘outsiders’ separately, with one part dealing with third parties and another part dealing with insiders. There should be a basic offence and an aggravated offence in relation to both insiders and outsiders (four offences in all).

Supported

The Government agrees with all of the Monitor’s recommendations.

The Government responses to the INSLM’s recommendations will ensure that an inadvertent disclosure by an outsider will not result in a criminal offence.

The Government agrees that insiders and outsiders should be treated differently to reflect the higher standard of conduct that insiders should rightly be held to in relation to their use, handling and disclosure of sensitive information.

The Government will amend section 35P to create separate offences for insiders and outsiders and there will be four offences in all. The basic offence and the aggravated offence for insiders will remain the same as the current section 35P offences.

The new measures will include a specific harm element requirement in the basic offence for outsiders, a higher fault element in the aggravated offence for outsiders, and a defence of prior publication (see recommendations 2-6 below).

Insiders will also continue to be subject to a separate non-disclosure offence regime under section 18 of the ASIO Act. This is a broad offence regime punishable by up to 10 years imprisonment.

Contact: T: +61 2 6277 7300 E: agmedia@ag.gov.au

Recommendation 2

The basic offence and the aggravated offences for insiders would be as per current section 35P.

Supported/Implemented

The Government agrees that insiders should continue to be held to a higher standard of conduct in relation to their use, handling and disclosure of sensitive information.

Accordingly, the basic and aggravated offences for insiders will remain the same as the current section 35P offences.

Recommendation 3

The basic offence for outsiders would have the same elements as subsection 35P(1), but with the additional physical element that the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of an SIO. Recklessness would be the default fault element in relation to this last physical element.

Supported

The Government will amend the basic offence for outsiders to include a physical element of harm. Recklessness will be the default fault element attached to the physical element of harm.

Recommendation 4

The aggravated offence for outsiders would have the same elements as subsection 35P(2) except that the fault element for (c)(ii) should be knowledge rather than recklessness (in other words, the fault element for the circumstance that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of the operation should be specified to be knowledge).

Supported

The Government will amend the aggravated offence for outsiders so that knowledge rather than recklessness is the fault element attached to the physical element of harm. The fault element will be explicitly referred to within the text of the provision.

Recommendation 5

There should be a basic offence (penalty five years imprisonment) and an aggravated offence (penalty 10 years imprisonment) in relation to both insiders and outsiders.

Supported

The Government agrees with the Monitor’s recommendation that the penalties for the offences for both insiders and outsiders should remain the same, that is a maximum sentence of imprisonment for 5 years for the basic offences and a maximum sentence of imprisonment for 10 years for the aggravated offences.

Contact: T: +61 2 6277 7300 E: agmedia@ag.gov.au

Recommendation 6

There should be a defence of prior publication (not available to a member or ex-member of the intelligence and security services in respect of information available to them in that capacity). The defence should require the defendant to satisfy the court that:

• the information in question had previously been published • having regard to the nature and extent of that prior publication and the place

where it occurred, the defendant had reasonable grounds to believe that the second publication was not damaging, and • the defendant was not in any way

directly or indirectly involved in the prior publication.

Supported

The Government agrees with the Monitor’s recommendation that there should be a defence of prior publication. The defence will not be available to ASIO employees, affiliates, etc. in relation to information available to them in that capacity.

The Government considers that prior to any secondary publication, an individual must take reasonable steps to ensure the proposed publication is not likely to cause harm. The Government will work with stakeholders to amend section 35P to include a defence of prior publication.