Tag Archives: natsec

By MARK PEARSON Follow @Journlaw

You have information that police and intelligence agencies are about to launch Australia’s biggest counter-terror operation. Or perhaps they already have.

ASIO headquarters, Canberra. Photo: Maps

The story could be the biggest scoop of your journalistic career.

Your news instinct might be to rush to publication or broadcast without giving government agencies the chance to shut your story down and without risking the news being leaked to your competitors.

But if your story meets the definition of a “special intelligence operation” under the Australian Security Intelligence Organisation (ASIO) Act 1979 then you could face up to five years in jail for ‘unauthorised’ disclosure of information, and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’.

Amendments partially exempting ‘outsiders’ (journalists) were proposed in 2016, but grave concerns remained over the impacts on journalists for ‘reckless’ disclosure that might endanger safety and jeopardise an operation and the implications for their sources.

So what might be “reckless” disclosure?

For that, we look to Section 5.4 of the Commonwealth Criminal Code, which reads:

5.4   Recklessness

(2)  A person is reckless with respect to a result if:

(a)  he or she is aware of a substantial risk that the result will occur; and

(b)  having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

When it comes to reckless disclosure, the Australian Law Reform Commission has stated:

“If the offence was framed to cover reckless disclosure, the prosecution would be required to prove that the accused was aware of a substantial risk that disclosure would occur as the result of the accused’s conduct and, having regard to the circumstances known to him or her, it was unjustifiable to take the risk.”

So, whether you view it under the existing Section 35P, or under the proposed reforms the Turnbull Government has agreed to enact, there is a strong argument that the only way to ensure you will not be charged with reckless disclosure is to first phone ASIO.

And that’s exactly the advice I was given when I phoned the ASIO media section and asked an (obviously) anonymous media liaison officer about the spy agency’s policy in dealing with journalists’ queries about whether the breaking news event they were trying to cover was in fact a “special intelligence operation”.

He said ASIO tried to strike a balance between what was appropriate to report and what was inappropriate.

He explained that soon after s35P had been passed in 2014 there had been a number of inquiries from journalists and that his office was not sure whether they were legitimate concerns about whether operations were SIOs or whether it was just “journalists being smart about the new laws”.

He said ASIO’s normal policy was to decline to comment when a media inquiry related to an individual or an operational matter, and that blanket ban made it hard to confirm or deny whether a particular operation was an SIO.

I later sent these specific questions to the officer at media@asio.gov.au:

1. What steps should journalists take to ascertain whether their story (e.g., terror arrest, investigation, etc) relates to an SIO (special intelligence operation)?
2. How do you respond to journalists’ inquiries about SIOs when ASIO’s normal practice is not to comment on matters related to individuals or operations?
3. How many journalists’ inquiries as to whether an operation is an SIO have you had since the legislation was enacted?
4. How many such inquiries have you had this year?
5. What steps do you take to prevent/warn journalists about reporting the details of an SIO?
6. What steps do you take to prevent/warn journalists about revealing the ID of an ASIO officer?
7. How many instances of either (journalists giving SIO details or naming an officer) have you dealt with, and how have you handled them?

In a reply email, he referred me to ASIO’s responses to questions posed by the acting Independent National Security Legislation Monitor Roger Gyles QC when he was conducting his inquiry into the legislation, publicly released in February 2016.

That submission confirmed the approach the media officer had outlined, stating:

“Media inquiries received by ASIO are managed in accordance with standard operating procedures. To perform its statutory functions, ASIO must employ a conservative approach to media engagement with respect to operational matters. ASIO does not confirm details relating to individuals, investigations or operations as a matter of course. This includes inquiries in relation to special intelligence operations or other operationally sensitive information.

If journalists contact ASIO Media regarding an operational matter they intend to report on, ASIO advises the relevant line-area within the Organisation before responding to the journalist. When ASIO has concerns about the sensitivities around the subject being reported on, ASIO does not provide a public comment, but may decide to speak with the journalist on a confidential basis to provide context on that sensitivity. In this instance, the journalist may be contacted by the Director-General or a Deputy Director-General to explain how Australia’s national security would be prejudiced if the subject was reported on publicly.

All media inquiries, and responses, are logged and retained for accountability and future reference.”

It continued:

“In practice, if a journalist approached ASIO for comment on information they believed to be operationally sensitive, and which ASIO knew to be related to a special intelligence operation, ASIO would consider speaking with the journalist on a confidential basis to explain the sensitivities of the information. A number of considerations would go to determining whether to inform the journalist of the existence of a special intelligence operation, including whether a person might be harmed should the existence of a special intelligence operation be revealed. If, after receiving a confidential briefing by ASIO, the journalist still intended to publish the information, ASIO would advise the journalist that to do so may breach 35P. It would then be for the journalist to decide whether or not to proceed with publishing the information.”

So there you have it, the national spy agency recommends the Ghostbusters approach to journalists wanting to avoid a decade in jail for reckless disclosure of a special intelligence agency: “Who you gonna call? ASIO.”

And we might never know how many journalists have already been tapped on the shoulder and ‘advised’ not to publish.

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Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2016

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

By MARK PEARSON Follow @Journlaw

[with research assistance from Virginia Leighton-Jackson]

Among more than 50 national security laws and amendments passed in Australia since 9/11, these four stand out as presenting the greatest threat to journalists …

1. ASIO Act 1979

Section 25A focuses on ASIO powers and access to computer networks, with one warrant now covering an entire computer network using third party computers to access target systems.

Section 34 gives ASIO powers to seek ‘questioning’ warrants and ‘questioning and detention’ warrants (detention for up to seven days) with five years’ jail possible for any revelation of the existence of the warrant itself or of any operation related to the warrant for up to two years after the warrant has expired. There are no public interest or media exemptions to the requirement, although disclosures of operational information by anyone other than the subject of a warrant or their lawyer requires the discloser to have shown ‘recklessness’ (s. 34ZS (3)).

Section 35P provides for up to five years in jail for ‘unauthorised’ disclosure of information related to a ‘special intelligence operation’ – and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’. Amendments partially exempting ‘outsiders’ (journalists) were proposed in 2016, but grave concerns remained over the impacts on journalists for ‘reckless’ disclosure that might endanger safety and jeopardise an operation and the implications for their sources.

Section 92 provides for 10 years’ imprisonment for anyone who identifies an ASIO officer or affiliate (or anyone connected with them) other than any who have been identified in Parliament (such as the director-general). Former ASIO employees and affiliates can be identified if they have consented in writing or have generally made that fact be known.

2. Crimes Act 1914 (Cth)

Section 3ZQT makes it an offence to disclose the fact that someone has been given notice by the Australian Federal Police (AFP) to produce documents related to a serious terrorism offence. Journalists could face up to two years in prison for doing so.

3. Telecommunications (Interception and Access) Act 1979

After amendments in 2015, the Act requires telecommunications providers to retain customers’ phone and computer metadata for two years so they can be accessed by criminal law enforcement agencies (State and Commonwealth) on the issue of a warrant. Information required to be stored includes: subscriber/ account information, the source and destination of a communication, the date, time and duration of a communication or connection to a service. A ‘journalist information warrant’ scheme was designed to prohibit the disclosure of journalists’ confidential sources without special precautions. These require approval of the Minister, who may act on the advice of a ‘public interest advocate’, though the processes are secret and disclosure of the details of any warrant for telecommunications data can incur imprisonment for two years.

4. National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘NSI’)

National security has long been cited as one of the exceptions to the principle of open justice, but new laws give judges and magistrates more reason to close a court in a terrorism trial. The NSI Act allows for evidence to be suppressed in court hearings if it contains disclosures prejudicial to national security. Part 3 of the Act allows prosecutors and courts to use national security information in criminal proceedings while preventing the broader disclosure of such information, sometimes even to the defendant. Section 29 gives courts the power to decide whether to close the court for such matters.

Other laws to consider when covering a national security story:

Discrimination and vilification laws

Laws apply at state, territory and Commonwealth levels prohibiting racial and religious discrimination and the vilification of people because of their race, religion, or other factors. They vary in their scope and application, with debate over whether the law against offensive behaviour because of race, colour or national or ethnic origin in Section 18C the Racial Discrimination Act (Clth) would apply to discriminatory media coverage of Muslims. All media codes of practice and ethical codes counsel against discriminatory or vilifying coverage. Social media comment moderation presents special challenges.

Defamation

If you are about to publish something damaging to someone’s reputation, ensure you work carefully within one of the main defences – truth (evidence to prove both the facts and their defamatory meaning), honest opinion / fair comment (based on true provable facts on a matter of legitimate public interest), or fair report (a fair and accurate report of a court case, parliament or another protected public occasion or document).

Contempt of court

The sub judice period (limiting prejudicial coverage about a suspect) starts from the moment someone has been arrested or charged. From that instant you should take legal advice before publishing anything other than what has been stated in open court, with special care to avoid any material giving an assumption of guilt (or even innocence), visual identification of the accused if their identification might be at issue, witness accounts, character background, confessions or prior charges or convictions. You can also face contempt charges over refusing to reveal a source or provide your data or notes when ordered to do so, thus techniques for source protection are paramount.

Suppression orders

Courts have special powers to issue suppression orders in national security cases. These might prohibit identification of certain people, restrict coverage of certain parts of a hearing, or even ban coverage of the total proceedings. Reporters and bloggers have been fined and jailed for breaching such suppression orders.

Sources:

Australian Human Rights Commission 2008, A Human Rights Guide to Australia’s Counter-Terrorism Laws, AHRC, Sydney, <www.humanrights.gov.au/human-rights-guide-australias-counter-terrorism-laws>.

Evershed, N., Safi, M., 19.10.2015, “All of Australia’s National Security Changes since 9/11 in a Timeline”, The Guardian Australia, available: http://www.theguardian.com/australia-news/ng-interactive/2015/oct/19/all-of-australias-national-security-changes-since-911-in-a-timeline

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Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2016

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.