ASIO Act changes ‘leave press free­dom at risk’

The Bulletin - - Special Report -

THE Aus­tralian gov­ern­ment’s pro­posed changes to 35P of the ASIO Act will do lit­tle to pro­tect press free­doms and needs a pub­lic in­ter­est safe­guard, ac­cord­ing to Grif­fith Univer­sity aca­demic Dr Kieran Hardy.

The changes, fore­shad­owed in Fe­bru­ary by At­tor­ney Gen­eral Ge­orge Bran­dis, were in­tended to re­duce the risk of jour­nal­ists be­ing pros­e­cuted un­der the Act.

The amend­ments will be based on rec­om­men­da­tions pub­lished by the In­de­pen­dent Na­tional Se­cu­rity Leg­is­la­tion Mon­i­tor Roger Gyles, who found that sec­tion 35P “does not con­tain ad­e­quate safe­guards” for those out­side of ASIO.

The pro­posed changes fo­cus on a dif­fer­ent treat­ment for those in­side and out­side of the se­cu­rity or­gan­i­sa­tion, although there is no change in the penal­ties.

Pub­lish­ers see the move as a step in the right di­rec­tion but re­main guarded un­til they see the draft leg­is­la­tion.

Dr Hardy said the changes would go some way to mak­ing it more dif­fi­cult to pros­e­cute jour­nal­ists un­der Sec­tion 35P. How­ever, these would do lit­tle to re­duce its sig­nif­i­cant im­pact on press free­dom, he said.

A lec­turer at the Grif­fith Univer­sity School of Crim­i­nol­ogy and Crim­i­nal Jus­tice, Dr Hardy said Sec­tion 35P gave im­mu­nity to ASIO of­fi­cers who en­gaged in un­law­ful con­duct dur­ing ap­proved un­der­cover op­er­a­tions.

It also pro­vided for five years jail for any­one who dis­closed in­for­ma­tion about a Spe­cial In­tel­li­gence Op­er­a­tion, and 10 years for an ag­gra­vated of­fence.

Writ­ing for aca­demic web­site The Con­ver­sa­tion, Dr Hardy said jour­nal­ists would face jail even if re­ports re­vealed that ASIO of­fi­cers en­gaged in un­law­ful or in­hu­mane con­duct out­side an op­er­a­tion’s scope.

“Be­cause of this, the of­fence is likely to have a wider chill­ing ef­fect on me­dia or­gan­i­sa­tions’ abil­ity to re­port on na­tional se­cu­rity is­sues,” he wrote.

“The ma­jor rec­om­mended struc­tural change is to re­design Sec­tion 35P so that it tar­gets two cat­e­gories of peo­ple ‘in­sid­ers’ and ‘out­siders’.

“The change to the main of­fence un­der the sec­tion means it will only apply when ‘out­siders’ make a reck­less dis­clo­sure that en­dan­gers health or safety or prej­u­dices an SIO.

Dr Hardy said this would make it harder to pros­e­cute jour­nal­ists com­pared with the of­fence as it stands, but it did not ad­dress the ma­jor is­sue – that Sec­tion 35P does not pro­vide any scope for jour­nal­ists to dis­close in­for­ma­tion in the pub­lic in­ter­est.

“A jour­nal­ist may be aware of a sub­stan­tial risk that dis­clos­ing in­for­ma­tion may prej­u­dice an SIO but be­lieves that the pub­lic should be in­formed about some un­law­ful or in­hu­mane con­duct in which ASIO of­fi­cers are in­volved, such as tor­tur­ing or black­mail­ing a sus­pect,” he said.

“’Un­til a pub­lic in­ter­est ex­emp­tion is in­cluded in Sec­tion 35P, the of­fence will have a sig­nif­i­cant im­pact on press free­dom and the me­dia’s abil­ity to re­port on ASIO’s ac­tiv­i­ties.

“Such an ex­emp­tion could al­low the re­port­ing of sig­nif­i­cant un­law­ful ac­tiv­ity or se­ri­ous mis­con­duct in­volv­ing ASIO of­fi­cers. This would strike a fair bal­ance be­tween pro­tect­ing the SIO regime’s se­crecy while let­ting jour­nal­ists re­port re­spon­si­bly on is­sues of pub­lic im­por­tance.”

Newspapers in English

Newspapers from Australia

© PressReader. All rights reserved.