Asio Act review told journalists face jail even if reporting on serious wrongdoing
|
Version 0 of 1. Journalists who report on serious wrongdoing by Australian intelligence officers may still face prosecution under new national security laws, according to the commonwealth director of public prosecutions (CDPP). Australia’s acting independent national security legislation monitor, Roger Gyles QC, is considering the impact of a new section inserted into the Asio Act in 2014 – section 35P – which would criminalise disclosure of information that relates to a “special intelligence operation”. Gyles was scheduled to hold hearings on Monday as part of his inquiry into the laws, which were passed by the federal parliament with Labor’s support in 2014. The new section has sparked concerns among news organisations, human rights groups and some opposition politicians. Journalists and whistleblowers may face jail for up to 10 years if they breach the disclosure offence. There is no public interest consideration or defence that would allow a journalist to report on intelligence matters. But for a prosecution to be initiated by the CDPP, a public interest test must still be applied. The federal government relied in part on this check to reassure journalists who were critical of the new laws. Unusually, the CDPP outlines two hypothetical scenarios that reporters might be placed in to consider whether it would proceed with a prosecution in a submission to Gyles’s inquiry. In one scenario a journalist receives information about “serious wrongdoing by a commonwealth officer in the course of a special intelligence operation”. The journalist contacts Asio, which refuses to confirm or deny whether a special intelligence operation is under way, and eventually the journalist publishes the information. While the CDPP indicates the public interest considerations would not favour a prosecution, it indicates that it might still consider the possibility. “This scenario may well be one in which the public interest considerations either favour no prosecution taking place, or are ‘finely balanced’. As stated above the matters that will be taken into account in assessing whether or not a prosecution is in the public interest will be different in every matter,” the CDPP submission said. The admission is likely to raise further concerns about the potential chilling effect the disclosure laws could have on the media. News organisations have condemned the introduction of the offence. A joint submission by Fairfax Media, News Corporation, the Australian Broadcasting Corporation, the West Australian, Sky News, the Media, Entertainment and Arts Alliance and other organisations said the uncertainty surrounding the application of the law would “expose journalists to an unacceptable level of risk and consequentially have a chilling effect on the reportage of all intelligence and national security material”. “The introduction of a serious criminal offence, punishable by jail, for journalists doing their job, does not offer a balance between national security concerns and the importance of public interest reporting by the media and journalists,” the submission said. “We remain strongly of the view that section 35P of the Asio Act – along with the other provisions included in this submission – have a chilling effect on freedom of speech and freedom of the media, hindering news gathering to the detriment of Australia’s place amongst modern democracies.” Asio and the Australian federal police also made submissions to the inquiry, but both were listed entirely as confidential. Others whose submissions raised concerns about the reach of the disclosure offence included senator Nick Xenophon, Australian Lawyers for Human Rights and Human Rights Watch. |