Submission of the NSW Bar Association to the Acting Independent NATIONAL Security Legislation Monitor, the Hon. Roger Gyles AO QC, in relation to the inquiry into sECTION 35P of the Australian Intelligence Organisation Act 1979 (CTH)

  1. The New South Wales Bar Association is pleased to provide this submission to the Acting Independent National Security Legislation Monitor, the Hon Roger Gyles AO QC, in relation to the inquiry into the impact on journalists of the operation of s 35P of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act).

Summary

  1. The Association is concerned that s 35P unduly and disproportionately restricts an important safeguard which ensures that the extraordinary powers provided for in Division 4 of Part III of the ASIO Act in relation to special intelligence operations (SIOs) are not abused or exceeded, namely disclosure in the public interest.
  1. In summary, the Association submits that:
  1. s 35P(1) should be repealed;
  1. s 35P(2)(c)(ii) should be repealed;
  1. in the alternative to a and b, an exception to s 35P be provided:
  1. for a disclosure in the public interest of a special intelligence operation (SIO);
  1. for a disclosure by a public official; and
  1. where the information is already in the public domain.
  1. Further, the Association considers that if the extraordinary powers provided in Division 4 of Part III in respect of special intelligence operations are to be retained, some form of independent statutory oversight of each operation is required, by the Commonwealth Ombudsman, the Independent National Security Legislation Monitor or the like.

The reach of Division 4 of Part III of the ASIO Act

  1. Section 35P is part of a suite of amendments to the ASIO Act introduced by the National Security Legislation Amendment Act 2014 (No 1) (Cth) (NSLA Act).[1]The NSLA Act introduced a new division, Division 4, in Part III of the ASIO Act, titled “Division 4--Special intelligence operations”.
  1. In Division 4 of Part III, s 35P(1) and (2) createtwo offences in relation to disclosure of information that relates to a “special intelligence operation” (SIO).
  1. In s 4, "special intelligence operation " is defined as an operation:

“(a)in relation to which a special intelligence operation authority has been granted; and

(b) that is carried out for a purpose relevant to the performance of one or more special intelligence functions; and

(c)that may involve an ASIO employee or an ASIO affiliate in special intelligence conduct. “

  1. The expression"special intelligence function" is defined in s 4 as “a function of the Organisation under paragraph17(1)(a), (b), (e) or (f)”.
  1. The expression "special intelligence conduct" is defined in s 4 as “conduct for or in relation to which a person would, but for section35K, be subject to civil or criminal liability under a law of the Commonwealth, a State or a Territory. “
  1. Section 35K provides animmunity fromcivil or criminal liability for “special intelligence conduct” during special intelligence operations, being conduct which, but for s 35K, would be subject to civil or criminal liability.[2]
  1. The protection provided to participants in an SIO by the immunity in s 35K(1) is quite extraordinary. The provision allows for a participant to engage in an act which would otherwise constitute a serious indictable offence, stopping short only of conduct which causes death or serious injury, constitutes torture, involves the commission of a sexual offence, and causes significant loss of or serious damage to property: see s 35K(1)(e)(i) to (iii).
  1. The provision leaves considerable room for violence to be lawfully inflicted, as long as it does not cause death or serious injury, constitute torture etc. For example, it permits someone to be beaten, intentionally, with the intention of causing death or serious injury. It permits forced entry to premises, and possibly even kidnapping as long as the damage is not serious and no “serious injury” is caused. The immunity provided by s 35K(1) allows an operative to infiltrate a group planning a terrorist act, and participate in the preparation of the act, stopping short only of conduct which causes death or serious injury, or serious damage to, property. It also prima facie allows an operative to engage in major criminal acts such as the importation of large amounts of prohibited substances into Australia without limit.
  1. Whilst the immunity from liability in s 35K is beyond the terms of reference of the current inquiry into the impact on journalists of the operation of s 35P, the Association considers that s 35K should also be the subject of urgent inquiry and amendment, if not repeal.
  1. Unlike certain terrorism-related powers in Division 3 of Part III of the ASIO Act, there is no provision in Division 4 for judicial oversight of an SIO. The existence and content of SIOs are both secret.[3] There may be no documentary record of them.[4] Even without s 35P, information relating to an SIO would attract certain public interest immunities in relation to the compulsory processes of the courts.[5]
  1. The Association is concerned that such extraordinary powers as conferred by Division 4 should be balanced by appropriate forms of accountability, including some form of independent statutory oversight of every SIO, by the Commonwealth Ombudsman, the Independent National Security Legislation Monitor or the like.

Section 35P of the ASIO Act

  1. Section 35P creates two criminal offences in relation to unauthorised disclosure of information:
  1. in s 35P(1), an offence of disclosure of information that relates to an SIO; and
  1. in s 35P(2), an offence of disclosure of information that relates to an SIO, and either:
  1. the person intends to endanger the health or safety of any person or prejudice the effective conduct of an SIO (s 35P(2)(c)(i)); or
  1. the disclosure of the information will have that effect (s 35P(2)(c)(ii)).
  1. The Note to each sub-section provides that recklessness is the fault element for the circumstance in s 35P(1)(b) and s 35P(2)(b), namely that “the information relates to a special intelligence operation”. The penalty for an offence against s 35(1) is imprisonment for 5 years, and for an offence against s 35(2) imprisonment for 10 years. Given the structure of the provisions, s 35(1) and s 35P(2)(c)(i)) will have no work to do, and everything will rest on s 35(2)(c)(ii), the provision which carries a heavier penalty than s 35P(1).
  1. Both s 35P(1) and (2) use the language “the information relates to a special intelligence operation”. The language may cover a situation where a person has information that relates to an SIO, but is not fully aware of the relationship (but not reckless). In those circumstances, it is not difficult to imagine a situation in which a person unintentionally (and not recklessly) discloses information that relates to an SIO, and may not know until he or she is charged that the information they have disclosed relates to an SIO.
  1. Both offence provisions are oppressive, and cover conduct which should not properly be treated as criminal.
  1. Section 35P(2)(c)(ii), in particular, is framed excessively broadly and, as noted above, leaves no work for s 35P(1) or s 35P(2)(c)(i) to do. It does not require intention to be proved in order to establish the offence. It invites speculation and conjecture - “disclosure will result in” – and is of uncertain application.
  1. The Association submits that having regard to:

a.the secret nature of SIOs;

b.the oppressive nature of the offences in s 35P, and in particular the speculative and uncertain “catch all conduct” offence in s 35P(2)(ii);

c.the breadth of the power of the Minister under s 35C to grant an SIO authority, including where the Minister is satisfied that there are reasonable grounds on which to believe that the SIO “will assist the Organisation in the performance of one or more special intelligence functions”;

d.the absence of any requirement of necessity or proportionality in the granting of an SIO authority, or in relation to conduct during SIOs;

e.the absence of any form of independent statutory oversight of SIOs;and

f.the expanded intelligence-gathering powers of ASIO;[6]

the offence provisions in ss 35P(1) and 35P(2)(c)(ii) are unfairly wide and open to abuse, and should be repealed.

Accountability through disclosure

  1. A special intelligence operation is not subject to judicial oversight or any other public mechanism of accountability. The Inspector-General of Intelligence and Security (IGIS) provides limited oversight under the Inspector-General of Intelligence and Security Act 1986 (Cth) (IGIS Act).
  1. In a liberal democracy, accountability of the executive is provided,importantly, by the judiciary, but also through the media, whistleblowers and members of the public coming forward to expose illegality, criminality and abuses of power whey they occur. Section 35P preventsany such public processes of accountability.
  1. Freedom of expression is an ancient common law right, more recently recognised in international instruments to which Australia is a party.The right to freedom of expression, recognised in article 19(2) the International Covenant on Civil and Political Rights, includes freedom to seek, receive and impart information.[7] The publication of information - by the public, the media,whistleblowers, academics - which exposes illegality, criminality, abuses of power or just poor policy, is an important aspect of freedom of expression, and critical in ensuring the accountability of the executive and informing the legislature.
  1. Whilst the right to freedom of expression may be subject to certain restrictions (see article 19(3)), such restrictions must conform to strict tests of necessity and proportionality.[8]

Exceptions to unauthorised disclosure of information offences

  1. Section 35P(3) provides exceptions to subsections (1) and (2) where the disclosure was inter alia in connection with the administration or execution of Division 4 (s 35P(3)(a)), in connection with the performance of functions or duties, or the exercise of powers, of ASIO (s 35P(3)(d)), to an IGIS official for the purpose of the IGIS exercising powers, or performing duties under the IGIS Act (s 35P(3)(f)), or by an IGIS official in connection with the IGIS exercising powers, or performing duties under the IGIS Act. None of the exceptions provide for accountability in respect of SIOs through disclosure in the public interest.
  1. The Association submits that any offence provision in relation to the unauthorised disclosure of information that relates to an SIO must be subject to exceptions that provide a level of accountability where illegality, criminality or abuse of power is involved and permit disclosure in the public interest.
  1. Section 80.3(f) of the Criminal Code Act 1995 (Cth) provides an example of a good faith defence to treason for a person who publishes a report or commentary in the public interest.
  1. In relation to public officials, s 26(3) of the Public Interest Disclosure Act 2013 (Cth)provides an available model for disclosures by such persons.
  1. Finally, it is anomalous that information about an SIO that has already been lawfully placed in the public domain should attract the operation of s 35P(1) and (2).[9]
  1. To facilitate disclosure in the broader public interest, the NSW Bar Association proposes that exceptions should be made for the following in s 35P:
  1. a disclosure in the public interest;
  1. a disclosure by a public official of illegality, criminality or an abuse of powerin relation to an SIO; and
  1. the disclosure of information already in the public domain.

35PUnauthorised disclosure of information

Unauthorised disclosure of information

(1)A person commits an offence if:

(a)the person discloses information; and

(b)the information relates to a special intelligence operation.

Penalty: Imprisonment for 5 years.

Note:Recklessness is the fault element for the circumstance described in paragraph(1)(b)—see section5.6 of the Criminal Code.

Unauthorised disclosure of information—endangering safety, etc.

(2)A person commits an offence if:

(a)the person discloses information; and

(b)the information relates to a special intelligence operation; and

(c)either:

(i)the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; or

(ii)the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

Penalty: Imprisonment for 10 years.

Note: Recklessness is the fault element for the circumstance described in paragraph(2)(b)—see section5.6 of the Criminal Code.

Exceptions

(3)Subsections(1) and (2) do not apply if the disclosure was:

(a)in connection with the administration or execution of this Division; or

(b)for the purposes of any legal proceedings arising out of or otherwise related to this Division or of any report of any such proceedings; or

(c)in accordance with any requirement imposed by law; or

(d)in connection with the performance of functions or duties, or the exercise of powers, of the Organisation; or

(e)for the purpose of obtaining legal advice in relation to the special intelligence operation; or

(f)to an IGIS official for the purpose of the InspectorGeneral of Intelligence and Security exercising powers, or performing functions or duties, under the InspectorGeneral of Intelligence and Security Act 1986; or

(g)by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

Note:A defendant bears an evidential burden in relation to the matters in this subsection—see subsection13.3(3) of the Criminal Code.

Extended geographical jurisdiction

(4) Section15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection(1) or (2).

(5) Subsection(4) does not, by implication, affect the interpretation of any other provision of this Act.

1

[1]Schedule 3, Item 3.

[2]Sections 4 and 35N NSLA Act.

[3] See the secrecy provisions in Schedule 6 to the NSLA Act.

[4] See egs 35B(2)(b).

[5]Sankey v Whitlam (1978) 142 CLR; Alister v R (1984) 154 CLR 404 at 431.

[6] For example, the secret warrant and controlled operation provisions in the NSLA Act and the recently enacted data retention law: Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth).

[7] See also General Comment 34, "Article 19: Freedoms of opinion and expression", adopted by the United Nations Human Rights Committee on 12 September 2011.

[8]Ibid, at [22].

[9] “Disclose” is not defined in the ASIO Act. The secrecy provisions in Schedule 6 to the NSLA Act exclude information that is in the public domain. However, the ordinary meaning of “disclose” is to make known to the receiver of information something not previously known by him or her – see egNaser v New South Wales (2007) 170 A Crim R 78 at 106 [207] per Campbell JA, Beazley and Hodgson JJA agreeing. Note also that the definition of “disclose” in the Public Interest Disclosure Act 2010 (Cth) includes “re-disclose”.