Journalists will face jail over spy leaks under new security laws
George Brandis's new spying laws will include measure to criminalise media reporting of Snowden-style leaks
crackdown by the Australian attorney general on the reporting of
'special intelligence operations'. Photograph: Trevor Paglen/REX
Australian journalists could face prosecution and jail for reporting
Snowden-style revelations about certain spy operations, in an
“outrageous” expansion of the government’s national security powers,
leading criminal lawyers have warned.
A bill presented to parliament
on Wednesday by the attorney general, George Brandis, would expand the
powers of the Australian Security Intelligence Organisation (Asio),
including creation of a new offence punishable by five years in jail for
“any person” who disclosed information relating to “special
intelligence operations”.
The person would be liable for a 10-year
term if the disclosure would “endanger the health or safety of any
person or prejudice the effective conduct of a special intelligence
operation”.
Special intelligence operations are a new type of
operation in which intelligence officers receive immunity from liability
or prosecution where they may need to engage in conduct that would be
otherwise unlawful.
The bill also creates new offences that only
apply to current and former intelligence operatives and contractors in a
move which appeared to directly address the risk of documentary
disclosures being made following revelations by the US National Security Agency whistleblower Edward Snowden – whom Brandis has previously labelled a “traitor”.
On Thursday Brandis dismissed suggestions he was specifically going after journalists who reported information.
"No we're not and I think there has been a little bit of erroneous commentary on that provision," Brandis told the ABC.
"It's
designed to plug a gap in the existing legislation. Under the existing
legislation it's a criminal offence for an officer of a national
security agency to disclose intelligence material to a third party, but
it's not an offence for an officer to copy or wrongfully remove that
material.
"In other words, communication with a third party is an
element of the current offence but it seems to us that it should be
wrong and it should be an offence to illicitly remove intelligence
material from an agency. That's all that's about."
But the leading
criminal barrister and Australian Lawyers Alliance spokesman Greg Barns
said a separate provision in the “troubling” legislation could be used
to prosecute and jail journalists who reported on information they
received about special intelligence operations.
The offences
relating to the unauthorised disclosure of information are outlined in
section 35P of the national security legislation amendment bill, which
was presented to the Senate on Wednesday and is set to face
parliamentary debate after the winter recess.
The explanatory memorandum to the bill
said the offence applied to “disclosures by any person, including
participants in an SIO [special intelligence operation], other persons
to whom information about an SIO has been communicated in an official
capacity, and persons who are the recipients of an unauthorised
disclosure of information, should they engage in any subsequent
disclosure”.
Barns said: “I thought the Snowden clause [in the
bill] was bad enough but this takes the Snowden clause and makes it a
Snowden/Assange/Guardian/New York Times clause.”
“It’s an
unprecedented clause which would capture the likes of Wikileaks, the
Guardian, the New York Times, and any other media organisation that
reports on such material.”
Barns, who has worked on terrorism
cases and has also advised Wikileaks, said Asio could secretly declare
many future cases to be special intelligence operations. This would
trigger the option to prosecute journalists who subsequently discover
and report on aspects of those operations.
He said it would be
easy for Asio to declare special intelligence operations because it
simply required the security director-general or deputy director-general
to approve.
“Their own boss says, ‘I think we better call this a
special intelligence operation, don’t you?’ ‘Yes, sir,’ close it down.
The more you talk about it the more outrageous it becomes,” Barns said.
Barns
said operations in which Asio officers broke laws were the very ones
that the community may regard as abuses of power. He argued Brandis
wanted powers not available to governments in the UK and the US where
citizens enjoyed greater protections for freedom of speech.
“In
Australia we lack that fundamental human rights protection and therefore
Brandis can get away with inserting a clause into a bill which you
wouldn’t be able to do in the UK or in the US,” Barns said.
“It’s
the sort of clause you’d expect to see in Russia or in China and in
other authoritarian states but you don’t expect to see it in a
democracy. I hope the Senate rejects it because it takes the law further
than in jurisdictions which are similar to Australia.”
Leading criminal law barrister Shane Prince said the new offences relating to special operations were “quite draconian”.
“The
five-year offence would seem to be able to apply even if the person had
no idea about the special intelligence operation and they happened to
release information which coincidentally was part of or related to the
special intelligence operation,” he said.
“Add on to that the fact
you probably in a trial wouldn’t be able to know what the special
intelligence operation was about, would mean that you could have the
situation where a person could be on trial for disclosing information
which they say is related to a special intelligence operation, even if
the person didn’t know that the information related to a special
intelligence operation and they would never get to know in their trial.”
The
Greens senator Scott Ludlam said the new offence could criminalise the
actions of journalists. “I can’t see anything that conditions it or
carves out any public interest disclosures. I can’t see anything that
would protect journalists,” he said.
Electronic Frontiers
Australia chief executive Jon Lawrence said the clause covering security
personnel “appears to be a clear attempt to stamp down on
whistleblowers to avoid an Australian Ed Snowden.
“The fact that
they’re making that illegal doesn’t necessarily stop a whistleblower
though I think in the general context of what is a pretty extreme
crackdown on whistleblowers generally.”
The amendments would
explicitly bring private contractors under the definition of
intelligence operatives to make them subject to prosecution, and include
any person “performing functions or services for the organisations in
accordance with a contract, agreement or other arrangement”.
The
new penalties criminalise copying, transcribing, retaining or recording
intelligence material in any way, and carry a maximum penalty of three
years. Evidence of disclosure is not required for these penalties.
Brandis
said this measure filled a gap in existing legislation whereby it was
not unlawful for an officer of Asio to illicitly copy or remove material
from Asio. He said it was already an offence for officers to disclose
confidential information to a third party, punishable by up to two years
in jail, and that penalty would increase to 10 years.
The president of the NSW Council for Civil Liberties, Stephen Blanks, said the penalties raised serious concerns.
“When
things go awry total secrecy is not desirable. When something is
seriously awry whistleblowers play a vital role in the provision of good
governance. The recent case relating to East Timor has thrown some light on this balance in Australia.”
The bill is the first element of the government’s planned national security reforms, with further changes set to target the risk posed by Australians who fight in Syria and Iraq and then return home.
Independent
MP Andrew Wilkie, a former intelligence analyst, said on Wednesday it
was important for intelligence officers to be able to make public
interest disclosures. Australia’s whistleblower legislation leaves a narrow window for disclosure of intelligence information.
“It
must be accompanied by protection for intelligence officials who copy
and disseminate material in the public interest,” Wilkie said.
Brandis
referred the bill to the parliamentary joint committee on intelligence
and security for a report by September, when MPs are set to debate the
law.
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