Proposed National Security Amendments Criminalise Reporting On Special Intelligence Operations

Thursday 17 July 2014 @ 11.15 a.m. | Crime | IP & Media

Yesterday, Attorney-General George Brandis introduced the National Security Legislation Amendment Bill (No. 1) 2014 ("the Bill") into the Senate.  The Bill proposes amendments to several key pieces of national security and intelligence gathering legislation, including the Australian Security Intelligence Organisation Act 1979 (Cth) (“the ASIO Act”) and the Intelligence Services Act 2001 (Cth).  

The Bill makes a number of changes to the ASIO Act’s employment provisions to align them with Australian Public Service standards and renames the Defence Imagery and Geospatial Organisation (DIGO) as the Australian Geospatial Intelligence Organisation (AGO) and the Defence Signals Directorate (DSD) as the Australian Signals Directorate (ASD).

But what has caused some commentators to express significant concerns are what the Explanatory Memorandum describes as:

“some additional measures to update and strengthen the secrecy offences in the ASIO Act and the IS Act in relation to the intentional unauthorised communication, handling or treatment of intelligence-related information.”

Attorney-General Brandis told ABC News that the ASIO Act was “in some respects obsolete” and “pre-dates the internet age”.  ASIO director-general David Irvine also told the ABC that the changes were necessary to deal with “significant and continuing threats of politically-motivated violence” in Australia.

Unauthorised disclosure of information offence created

The Bill would create a new criminal offence by inserting section 35P into the ASIO Act.  A person could be liable for imprisonment for five years if they disclose information relating to a “special intelligence operation”, and ten years if they “endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation”.

Criminal barrister and Australian Lawyers Alliance spokesman Greg Barns told The Guardian that the legislation was “troubling” and:

“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.”

He was particularly concerned by the fact that “special intelligence operations” are created simply by a declaration from ASIO’s security director-general or deputy director-general.

 Another criminal law barrister, Shane Price, told The Guardian his concerns were that:

“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…

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.”

Schedule 6 of the Bill also creates other new offences for “unauthorised communication” or “unauthorised dealing” of records or information or matter that only apply to current and former security employees, affiliates or contractors.  Offenders could be jailed for up to three years regardless of whether any information is passed on.

Other amendments

The Bill introduces a raft of other amendments, including allowing ASIO to work more closely with the Australia Secret Intelligence Service (ASIS).  ABC News  has reported that:

“[u]nder the changes it will be possible for ASIS to collect information on Australian citizens overseas on behalf of ASIO and spy on Australians without ministerial approval.”

The Explanatory Memorandum says that the changes:

“will create a new ground of Ministerial authorisation enabling ASIS to protect its operational security and will allow ASIS to train certain individuals in use of weapons and self-defence techniques.  It will also extend immunity for IS Act agencies for actions taken in relation to an overseas activity of the agency [and] provide a limited exception for use of a weapon or self-defence technique in a controlled environment…”

According to the ABC, this is “the first tranche of changes to national security legislation”, with further changes to be introduced later, possible including the highly controversial concept of mandatory data retention .

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