Acting Independent National Security Legislation Monitor
Inquiry into section 35P of the ASIO Act
Attorney-General’s Department portfolio response to questions on notice
Question: International Comparators to SIOs
Does the Department have further information about international comparators to special intelligence
operations (SIOs), including any attendant disclosure offences in those schemes (or applicable
disclosure offences elsewhere on the statute book?
In particular, please comment on whether the following legislative or executive schemes are
sufficiently comparable to Special Intelligence Operations:
 UK – Regulation of Investigatory Powers Act 2000 (Part II – surveillance and covert human
intelligence sources, in particular sections 26-29) and the Covert Human Intelligence Sources
Order 2014 made under section 71 of the Act; and
 US – The Attorney-General’s Guidelines Regarding the Use of Federal Bureau of
Investigation Confidential Human Sources.
Response
The secrecy laws and regimes of other countries are not readily amenable to direct international
comparison. While there are similarities between the common law systems of Australia, the UK, the
US and Canada, there are also many differences that make direct comparison difficult and, arguably in
this context, not particularly useful. The laws surrounding covert operations in other jurisdictions
function within unique constitutional, judicial, legal and operational contexts which impact on their
construction and interpretation.
There are some evident policy and practical differences between Australia and other countries. For
example, in Australia longstanding Commonwealth criminal law policy is that it is acceptable for
specific secrecy offences to apply to the disclosure of particular types of information, rather than
relying solely on general secrecy offences, where the Parliament is satisfied that it is necessary and
appropriate to take into account the particular circumstances and levels of protection which should
apply to different types of information.
Each country’s scheme has also developed in the context of jurisprudence that has developed over
time, and in some cases, in legislative reforms in response to judicial decisions.
Nonetheless, the Department has identified a number of international comparators to Australia’s SIO
scheme and its attendant disclosure offences. The UK, US and Canada allow intelligence agencies to
conduct covert operations, to provide covert operatives with protection from civil and criminal
liability, and to protect the identity of these covert operatives through disclosure offences.
United Kingdom
UK law enforcement, security and intelligence agencies use the Regulation of Investigatory Powers
Act 2000 (‘RIPA’) and a related Code of Practice to authorise the use and conduct of covert human
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intelligence sources who engage in activities which may otherwise infringe upon statutory rights
specified in the Human Rights Act 1998.
The process for authorising the use of a covert human intelligence source under RIPA bears some
similarities to the process undertaken in authorising an SIO. The use or conduct of a covert human
intelligence source under RIPA may be authorised by an authorised officer if this use is necessary and
proportionate to what is sought to be achieved.1 Similarly, when authorising an SIO under section 35C
of the Australian Security Intelligence Organisation Act 1979 (‘ASIO Act’), the Attorney-General
must also have regard to issues of necessity and proportionality. The Attorney-General must be
satisfied that the circumstances are such as to justify an SIO and that unlawful conduct involved in
committing an SIO will be limited to the maximum extent possible consistent with conducting an
effective SIO.2
There are also a number of legal protections provided to covert human intelligence officers in the UK
scheme in carrying out their operations. These officers are not subject to civil liability for conduct
incidental to, but still within the context of, authorised conduct.3 While full immunity from
prosecution is not automatically provided to covert human intelligence officers, the UK common law
recognises that the participation of officers and sources in unlawful activity may be proper for the
purpose of giving evidence so long as another person is not induced to commit a crime.4 Full
immunity from prosecution may be granted for an offence already committed if written notice is given
under the Serious Organised Crime and Police Act 2005 for the purposes of an investigation or
prosecution.
It is also established practice in the UK for agencies to rely upon investigative and prosecutorial
discretion, with an authorisation under the RIPA forming the basis of an application in the public
interest against the prosecution of an officer or source for unlawful conduct related to that RIPA
authorisation.
The UK has a number of secrecy provisions in the Official Secrets Act 1989. These include a range of
offences in sections 1 -3 of that Act that generally apply to ‘trusted insiders’ (officers of security,
defence, international relations and law enforcement agencies, or other Crown servants or government
contractors) who disclose information without authorisation. There are subsequent disclosure
offences in section 5 of that Act by third persons who receive information disclosed without
authorisation. These offences require the disclosure to be ‘damaging’ or that the discloser must know
or have reasonable cause to believe the disclosure would be ‘damaging’. The maximum penalties for
all the relevant offences in that Act are two years’ imprisonment following conviction on indictment
or six months’ imprisonment on summary conviction. Given that the conduct envisaged under Part II
of RIPA is confined to surveillance and the use and conduct of a covert human intelligence source, it
is reasonable that the secrecy and disclosure offences outlined above are considered sufficient.
As Professor Clive Walker notes in his submission to the inquiry, there is no real equivalent to the
SIO scheme or section 35P of the ASIO Act in the UK, and that the closest offence provision in the
UK to section 35P is the disclosure offence in section 39 of the Terrorism Act 2000. Section 39 of the
UK Act provides that it is an offence to disclose to another anything which is likely to prejudice the
1
2
3
4
RIPA, subsections 29(2) and 29(3).
ASIO Act, paragraphs 35C(2)(c) and 35C(2)(b).
RIPA, subsections 27(2).
R v Birtles [1969] 1 WLR 1074. See also ASIO Act, paragraph 35K(1)(d).
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investigation, or interfere with material which is likely to be relevant to the investigation in
circumstances in which a person knows or has reasonable cause to suspect that a constable is
conducting or proposes to conduct a terrorism investigation. It is a defence to an offence against
section 39 of the UK Act if the person did not know and had no reasonable cause to suspect that the
disclosure or interference was likely to affect a terrorist investigation or that he had a reasonable
excuse for the disclosure or interference. The offence in section 39 of the UK Act is broader than the
offence in section 35P of the ASIO Act as the section 39 offence is not confined to an SIO but can
relate to any terrorism investigation. The offence in section 39 of the UK Act is also narrower in that
it requires prejudice or interference.
United States
The Federal Bureau of Investigation is an intelligence-driven and a threat-focused national security
organisation with both intelligence and police investigative law enforcement responsibilities. The
Attorney General’s Guidelines Regarding the Use of Federal Bureau of Investigation Confidential
Human Sources (‘FBI Guidelines’) enables the Federal Bureau of Investigations (FBI) to authorise a
confidential human source to engage in any activity which would otherwise constitute a criminal
violation.
This regime is also informed by considerations of necessity and proportionality. Before authorising
illegal activity, the FBI agent in charge of the matter and the Chief Federal Prosecutor must be
satisfied that this activity is necessary to:



obtain information essential for the success of an investigation that is not reasonably available
without such an activity, or
prevent death, serious bodily injury or significant damage to property, and
that the benefits to be obtained from participation in the illegal activity outweigh the risks to
the confidential human source.5
Once these criteria are satisfied, any illegal activities can be authorised, except for acts of violence
(except in self defense) or acts designed to obtain information for the FBI that would be unlawful if
conducted by a law enforcement agent (such as breaking and entering and illegal wiretapping).6
The US does not appear to have an offence comparable to section 35P of the ASIO Act but rather has
disclosure offences directed to specific conduct. For example section 3121 of U.S. Code: Title 18 –
Crimes and Criminal Procedure (USC) prohibits the disclosure of information concerning the identity
of covert intelligence agents and carries a maximum penalty of three years’ imprisonment.
Canada
The Canadian Criminal Code 1985 (‘the Code’) allows a relevant Minister to designate public
officers after considering the nature of the duties to be performed by the officer in relation to law
5
6
FBI Guidelines, Part V, Division B, subsection 2(a).
FBI Guidelines, Part V, Division A.
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enforcement generally. A designated public officer is justified in committing, or directing the
commission of, an act or omission that would otherwise constitute an offence if the public officer is
investigating an offence or criminal activity, and believes on reasonable grounds that the commission
of the act or omission is reasonable and proportional in the circumstances. This designation may be
subject to conditions including the duration of the designation, the nature of the matters to be
investigated and the types of offences a person can commit.7
This legal immunity does not extend to intentionally or criminally negligent causing of death or
bodily harm, to another person, wilful attempts to obstruct the course of justice or conduct that would
violate the sexual integrity of an individual.8
The criterion used for designating officers involves a general consideration of the duties to be
performed by the officer. A designated officer may also engage in acts that cause serious damage to
property,9 actions which are explicitly excluded from SIOs under subparagraph 35K(1)(e)(iii). The
scope of protection granted to a designated officer under the Code may also be extended to a private
citizen under the direction of this officer, while SIOs only extend protection to persons identified in an
SIO authority.10
The disclosure offences in sections 13 and 14 of the Security of Information Act 1985 (SoI Act)
which apply to current or former federal public officials or persons served with notices, provide that a
person bound to secrecy will commit an offence if they communicate or confirm information that was
special operational information. If the information is not true, the offence is punishable by up to 5
years’ imprisonment, while disclosure of true information is punishable by 14 years’ imprisonment.11
In the context of the offences in sections 13 and 14 of the SoI Act, while the person is required to
intentionally disclose the information, they need not know, or be reckless to the fact, that the
information was special operational information. Special operational information is also more broadly
defined than special intelligence operations, being defined as any information that the Canadian
Government takes measures to safeguard that reveals, or from which it may be inferred, the identity of
a confidential source of information, whether a place was intended to be subject to a covert operation
or the means that the Canadian government used to collect intelligence.12.
The broad scope of these offences is tempered somewhat by the addition of a public interest defence,
which may only apply if the person acts for the purpose of disclosing an offence that the person
reasonably believes has, is or is about to be committed by another person in the purported
performance of that person’s duties and functions for, or on behalf of, the Government of Canada, and
the public interest in the disclosure outweighs the public interest in non-disclosure.13
In contrast to the section 35P offences, the narrow public interest test in the Canadian offence which
relates to the disclosure of the commission of an offence, will not prevent the risk of harm or harm
7
8
9
10
11
12
13
The Code, subsections 25.1(3), 25.1(6) and 25.1(7).
The Code, subsections 25.1(8) and 25.1(11).
The Code, subsection 25.1(9).
ASIO Act subsection 35H(1); The Code, subsection 25.1(10).
The SoI Act sections 13 and 14.
The SoI Act, section 8; ASIO Act, section 4.
The SoI Act, section 15.
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that occurs from the very fact of the disclosure of the information itself. In the Australian SIO
context, any alleged wrongdoing can be disclosed contemporaneously and directly to the IGIS and
which means the public interest in that disclosure can be considered before the commission of a
possible offence against section 35P.
Additional Information on the ‘Chilling Effect’
As noted in the Department’s previous submission, the concerns raised about the absence of an
explicit public interest or journalistic exemption in section 35P have been taken into account by the
Government and balanced against other considerations, including that of the safety of participants in
SIOs and the integrity of SIOs. These issues were considered in the framing of the safeguards,
including the fault elements of the offences; the requirement that the CDPP takes into account the
public interest before initiating a prosecution; and that the Attorney-General’s consent is required for
prosecution proceedings to commence.
In response to the above, some submissions have argued that the ‘chilling effect’ of section 35P is
created by the apprehension of prosecution, not the act of prosecution itself. It has been posited that
this apprehension will discourage journalists from reporting on issues of national security and will
deter potential sources of information from coming forward.14
No evidence has been provided to support the existence of this ‘chilling effect’ in Australia.
Reporting on security and counter-terrorism related matters have remained prevalent since the
introduction of the model controlled operations scheme in the Crimes Act 1914 on 19 February 2010
and
ASIO’s
SIO
regime
came
into
force
on
29 October 2014. In particular, there has been significant coverage of recent counter-terrorism
activities in the past 12 months including:





counter-terrorism raids on 18 September 2014;
Endeavour Hills stabbing on 23 September 2014;
the Martin Place Siege on 15-16 December 2014;
Sydney counter-terrorism raids on 10 February 2015; and
disruption of the Anzac Day 2015 terror plot in Melbourne.
As previously submitted, there has never been a prosecution of a journalist under either the controlled
operation disclosure offences or section 35P. The continued reporting of counter-terrorism and
security activities and the absence of prosecutions is indicative of the productive engagement between
journalists and Commonwealth law enforcement and intelligence agencies. AFP and ASIO made
reference to constructive engagement with media organisations in their oral submissions of
28 May 2015.
This current cooperative relationship, when supplemented by the disclosure offences under the
controlled operations and SIO schemes, effectively preserves existing journalistic practices while
deterring members of the public from jeopardising the safety and security of SIO participants, and the
integrity of SIOs and controlled operations.
14
See, for example, submission no. 25, page 10.
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Additional Information on the Genesis of Controlled Operations
A controlled operation is a technique in which an investigator and / or another person involved in an
operation is authorised to engage in activities which may otherwise be unlawful or amount to the
commission of an element of the primary offence during the course of an investigation. The
authorisation process ensures accountability, provides immunity from prosecution in some
circumstances and avoids the presumption that evidence obtained through the conduct of a covert
operation is inadmissible.
Undercover, proactive and covert methods have long been a part of law enforcement. The prevalence
of this type of investigation increased in the 1980s when undercover and surveillance techniques
began to be recognised as effective and became standard practice, particularly in drug investigations.
Some States introduced laws that offered law enforcement immunity and provided for authorisation of
conduct which may be otherwise unlawful. However, such conduct was not legislated for at the
Commonwealth level until 1996 (see below).
Genesis of the Controlled Operations Scheme
The controlled operations scheme was originally inserted into the Crimes Act 1914 by the Crimes
Amendment (Controlled Operations) Act 1996. The Act was intended to exempt from criminal
liability certain law enforcement officers who engage in unlawful conduct to obtain evidence of
offences relating to narcotic goods. The ultimate objective of the controlled operations scheme was to
facilitate the investigation and prosecution of such offences.
The Act was a response to the decision of the High Court in Ridgeway v R (1995) 184 CLR 19. In
Ridgeway, the High Court held that, where law enforcement officials break the law by committing an
element of the offence for which a defendant is being prosecuted, then as a general rule, a court
should exercise its discretion to refuse to allow evidence of that element of the offence to be admitted
against the defendant. The High Court held that the problems relating to the conduct of controlled
operations should be addressed by introducing regulating legislation.
As a consequence of the Ridgeway decision four Australian jurisdictions enacted controlled
operations legislation (South Australia (1995), the Commonwealth (1996), New South Wales (1997)
and Queensland (2000)). The schemes were all in different forms, however they had similar
underlying principles. Other States’ law enforcement practice continued under common law
restrictions or broader legislation. The Commonwealth scheme ensured that evidence resulting from
certain conduct, related to importation, exportation or possession of narcotic goods, would not be
excluded from evidence under the principles enunciated in Ridgeway.
A major review of the Commonwealth controlled operations legislation was conducted in 1999 by the
Parliamentary Joint Committee (PJC) on the then National Crime Authority (now the Australian
Crime Commission). In response to the PJC report the Commonwealth regime was updated in 2001
to extend the regime beyond narcotic offences.
In 2004 national model laws aimed at harmonising the controlled operations regimes across Australia
were endorsed by the then Standing Committee of Attorneys General (SCAG). The model laws were
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developed by a Joint Working Group of the SCAG and the then Australasian Police Ministers Council
following a 2002 Leaders’ Summit on Multi-jurisdictional Crime.
Current Controlled Operations Scheme
The controlled operations scheme was updated by the Crimes Legislation Amendment (Serious and
Organised Crime) Act 2010. The Act was based on the national model legislation.
The updated scheme expanded the criminal activity in relation to which controlled operations could
be used to investigate. They also extended protection from criminal and civil liability to informants,
enhanced the ability of law enforcement agencies to investigate and prosecute multi-jurisdictional
criminal activity and provided a stronger oversight regime by including reporting obligations and
prescribing offences for unauthorised disclosure of information.
Sections 15HK and 15HL were enacted in 2010 as part of the implementation of the model
laws. Section 22 of the model laws established an offence for the unauthorised disclosure of
information where a person:


intentionally, knowingly or recklessly discloses any information; and
the person knows that, or is reckless as to whether the information relates to an authorised
operation.
Subsection 22(2) of the model laws established an aggravated offence when the discloser ‘intends to
endanger the health or safety of any person or prejudice the effective conduct of an authorised
operation.’
Sections 15HK and 15HL reflect the intent of the aforementioned provisions.
provides that a person will be guilty of an offence if he or she:


Section 15HK
intentionally discloses any relevant information, and
knows that, or is reckless as to whether, the information relates to an authorised controlled
operation outside of certain circumstances.
Section 15HL outlines an aggravated offence and provides that a person will be guilty of an offence if
he or she discloses information relating to a controlled operation and he or she:


intends that the disclosure of the information will endanger the health or safety of any person
or prejudice the effective conduct of a controlled operation; or
is reckless as to whether the disclosure of the information could endanger the health or safety
of any person or prejudice the effective conduct of a controlled operation.
The purpose of these offences is to help protect participants in controlled operations and to ensure the
integrity of investigations. Providing strong protections against disclosure is extremely important,
given the high risks to controlled operations participants should their identity or the nature of the
operation be revealed. The AFP and ASIO written and oral submissions provide further information
about the specific risks involved.
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