The Government is trying to sneak through a law designed
to prevent journalists from reporting on leaks about intelligence
The media is saying things like "Journalists will face jail
over spy leaks under new security laws", which the Attorney
General George Brandis has dismissed as an overreaction, assuring
everyone that the ASIO Act changes he is pushing do not target
journalists at all. So, what's the truth?
Actually it's pretty bad, and the AG either hasn't read
his own legislation or is being very liberal with the truth.
It's buried deep in a vast mass of amendments to the ASIO
Act. A new section 35P creates a criminal offence of disclosing
information that relates to a "special intelligence
operation". The penalty is up to 10 years in prison.
"Special intelligence operation" (SIO) is a new
concept too. Basically it's any spying operation which will
involve breaking laws (like, say, hacking the Indonesian
President's phone). If ASIO deems such an operation to be an
SIO, then everyone's immune from prosecution for breaking those
pesky laws. And, yes, it's ASIO itself which will determine
what's special and what isn't. No independent
So – once we have an SIO, which is of course always going
to be classified, then s35P kicks in. If a whistleblower leaks
information relating to the SIO to a journalist, then not only does
the whistleblower commit an offence, but if the journalist
publishes it then so will they.
There is no defence of ignorance, or innocent dissemination, or
protection for journalists, or public interest, or anything else.
There's no requirement that the journalist knows or even
suspects that the information relates to an SIO. The only
requirements for the offence to be proved are that there is an SIO
and that the information has been disclosed.
This couldn't happen in the US or UK, which have protections
for free speech that would prevent a law like this from being
passed. In Australia, we have no such protection. The practical
reality of this law is that journalists will simply not know, when
they are investigating and reporting on matters relating to spying
or national security, whether they are risking committing an
offence. The chilling effect, on investigative journalism and on
the public's right to know what its government is doing in its
name, is obvious.
Basically, this is a big Don't Argue to the media from our
freedom-loving Federal Government. As the Prime Minister is fond of
saying, if you're not on Team Australia...
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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