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
2.
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.
3.
In summary, the Association submits that:
a.
s 35P(1) should be repealed;
b.
s 35P(2)(c)(ii) should be repealed;
c.
in the alternative to a and b, an exception to s 35P be provided:
i. for a disclosure in the public interest of a special intelligence operation
(SIO);
ii. for a disclosure by a public official; and
iii. where the information is already in the public domain.
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4. 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
5. 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”.
6. In Division 4 of Part III, s 35P(1) and (2) create two offences in relation to
disclosure of information that relates to a “special intelligence operation” (SIO).
7. 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. “
8. The expression "special intelligence function" is defined in s 4 as “a function of
the Organisation under paragraph 17(1)(a), (b), (e) or (f)”.
9. The expression "special intelligence conduct" is defined in s 4 as “conduct for
or in relation to which a person would, but for section 35K, be subject to civil or
criminal liability under a law of the Commonwealth, a State or a Territory. “
10. Section 35K provides an immunity from civil 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
2
Schedule 3, Item 3.
Sections 4 and 35N NSLA Act.
2
11. 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).
12. 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.
13. 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.
14. 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
15. 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.
3
See the secrecy provisions in Schedule 6 to the NSLA Act.
See eg s 35B(2)(b).
5 Sankey v Whitlam (1978) 142 CLR; Alister v R (1984) 154 CLR 404 at 431.
4
3
Section 35P of the ASIO Act
16. Section 35P creates two criminal offences in relation to unauthorised disclosure
of information:
a.
in s 35P(1), an offence of disclosure of information that relates to an SIO; and
b.
in s 35P(2), an offence of disclosure of information that relates to an SIO, and
either:
i. 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
ii. the disclosure of the information will have that effect (s 35P(2)(c)(ii)).
17. 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).
18. 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.
19. Both offence provisions are oppressive, and cover conduct which should not
properly be treated as criminal.
20. 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
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intention to be proved in order to establish the offence. It invites speculation and
conjecture - “disclosure will result in” – and is of uncertain application.
21. 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
22. 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).
23. 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 prevents any such public processes of accountability.
24. 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
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).
5
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.
25. 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
26. 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.
27. 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.
28. 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.
29. 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.
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].
6
30. 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
31. To facilitate disclosure in the broader public interest, the NSW Bar Association
proposes that exceptions should be made for the following in s 35P:
a.
a disclosure in the public interest;
b.
a disclosure by a public official of illegality, criminality or an abuse of power in
relation to an SIO; and
c.
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the disclosure of information already in the public domain.
“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 eg
Naser 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”.
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35P
Unauthorised 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 section 5.6 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 section 5.6 of the Criminal Code.
Exceptions
(3)
Note:
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 Inspector-General of Intelligence and
Security exercising powers, or performing functions or duties, under the
Inspector-General 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.
A defendant bears an evidential burden in relation to the matters in this
subsection—see subsection 13.3(3) of the Criminal Code.
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Extended geographical jurisdiction
(4) Section 15.4 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.
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