26th Mar 2015, 5:59 PM – Senate Bills — Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015; in Committee

This division was for whether or not to accept Nick Xenophon’s motion to amend the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015. Xenophon summarised the amendment in Parliament:

This amendment addresses issues relating to disclosures of information by journalists, through amendments to the Australian Security Intelligence Organisation Act 1979, the Crimes Act 1914 and the Criminal Code Act 1995. These amendments address changes to these acts made by the previous bills in this tranche of legislation, primarily the National Security Legislation Amendment Act (No. 1) 2014.

Make no mistake about it, these issues go to the heart of press freedom in this country in relation to the ability of investigative journalists to do their work. These bills insert into these acts new offences relating to the disclosure of information relating to a special intelligence operation, as well as for publishing advertisements or items of news that contain information about recruitment of people to armed forces in a foreign country. I want to make it clear that, in relation to any publication of information in respect of a special intelligence operation that could endanger the lives of those involved in the operation or other lives directly as a result of that disclosure of information, I do not oppose the imposition of a penalty. If we are talking about endangering lives—if, for instance, there is an ASIS or ASIO officer whose life is put in real danger by the disclosure of their identity—then that is a serious matter. But we are talking about a whole range of other circumstances where there can be no such consideration; where there is no question of any lives being endangered; and where, in fact, what is being endangered by not publishing that information is very much the public interest and some key democratic principles.

At the time that the bills were being considered in respect of section 35P, I expressed my concerns about the provisions relating to disclosure of information and how this would impact on journalists reporting on matters in good faith and in the public interest. At the time, I also moved an amendment to include the consideration of the public interest as a defence to these offences. This amendment expands on these original concerns to address the matter more fully. I am grateful to the mainstream media organisations that I have spoken to—major media organisations which have been very helpful with useful suggestions as to how this clause could have real protections for journalists who are doing their job in the public interest.

Firstly, in relation to disclosure of information, these amendments introduce a concept of 'knowingly disclosing information relating to a special intelligence operation, disclosing information with the intent of endangering the health or safety of any person, or prejudicing the effective conduct of a special intelligence operation'. Further, the amendments provide exceptions to this offence which are consistent with existing whistleblower protections. They also include an exception where the person was working in a professional capacity as a journalist and published in good faith as a matter of public interest, and where the report was not likely to enable staff of security organisations to be identified.

The amendments also provide an extensive definition of what matters can be considered to be in the public interest. These include matters that increase public debate and promote the integrity and accountability of security organisations or officials, and matters relating to conduct that contravenes certain laws or standards. These amendments provide the same defences in relation to disclosing information about delayed notification search warrants under the Crimes Act.

The amendments also address issues relating to the publication of certain matters under the Criminal Code. The new offences in the act relate to the publication of recruitment material, and, in essence, I believe these offences are suitable

However, there is capacity for these offences to capture media organisations in the following ways. Firstly, it is possible that a journalist could publish a story that contains information about recruitment—for example, an investigative piece that looks at recruitment strategies of terrorist groups or how an individual has been personally affected by this. Secondly, it is possible that a major news organisation with many publications could unwittingly publish an advertisement that, while it does not overtly seem so, relates to recruiting activities—for example, for a town meeting that turns out to have recruiting elements, unbeknownst to the news organisation.

To address these concerns, the amendments in this item change the existing offence from a person being reckless to the fact to a person publishing with the intention of encouraging recruitment. Further, in relation to the offence of publishing more detailed information about recruiting, these amendments provide that the offence can only apply where the publication is not in the public interest. This would, for example, come into effect when a story is published about recruitment taking place at a certain location and time for the purpose of raising public awareness.

I want to briefly raise a matter that relates to ASIS, not ASIO, but the principles are the same. There is, of course, the issue in respect of the allegations that ASIS planted electronic surveillance, electronic bugs, in 2004 in the East Timorese cabinet room, allegedly to gather information regarding negotiations of the Timor Sea treaty, the sharing of energy resources between Australia and Timor. That cannot be seen, on any reasonable basis, as a national security issue. In March 2014 the International Court of Justice ordered Australia to stop any such behaviour. Bernard Collaery, a former Attorney-General of the Australian Capital Territory, representing East Timor, alleged in 2013 that his offices had been raided by ASIO. A key witness, known as Witness K, was detained and had his passport cancelled, which of course has all sorts of consequences for Witness K. I am not sure whether he has been charged.

My concern is with cases such as that, cases of botched operations, and it does happen from time to time. As good as our intelligence agencies are, as good as the AFP is, there are occasions when they get it wrong, where they have exceeded their powers, and it is in the public interest to expose that. There is no protection for journalists, as I see it, under the current legislation or 35P. We know what the Media, Entertainment and Arts Alliance, representing journalists in this country, have said about this. And leading academics are concerned that section 35P in its current form is simply too restrictive and draconian and needs to be amended.