ASIO Act changes ‘leave press freedom at risk’

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The Australian government’s proposed changes to 35P of the ASIO Act will do little to protect press freedoms and needs a public interest safeguard, according to Griffith University academic Dr Kieran Hardy.

The changes, foreshadowed last week by Attorney General George Brandis, were intended to reduce the risk of journalists being prosecuted under the Act.

The amendments will be based on recommendations published by the Independent National Security Legislation Monitor Roger Gyles, who found that section 35P “does not contain adequate safeguards” for those outside of ASIO.

The proposed changes focus on a different treatment for those inside and outside of the security, although there is no change in the penalties.

Publishers saw the move as a step in the right direction but remained guarded until they saw the draft legislation.

Dr Hardy said the changes would go some way to making it more difficult to prosecute journalists under Section 35P. However, these would do little to reduce its significant impact on press freedom, he said.

A lecturer at the Griffith University School of Criminology and Criminal Justice, Dr Hardy said Section 35P gave immunity to ASIO officers who engaged in unlawful conduct during approved undercover operations.

It also provided for five years jail for anyone who disclosed information about a Special Intelligence Operation, and 10 years for an aggravated offence.

Writing for academic website The Conversation, Dr Hardy said journalists would face jail even if reports revealed that ASIO officers engaged in unlawful or inhumane conduct outside an operation’s scope.

“Because of this, the offence is likely to have a wider chilling effect on media organisations’ ability to report on national security issues,” he wrote.

“The major recommended structural change is to redesign Section 35P so that it targets two categories of people ‘insiders’ and ‘outsiders’.

“This would mean that the offences in the section currently will apply only to intelligence employees or contractors.

“The offences’ amended version will apply to journalists and any other individual.

“The change to the main offence in Section 35P means it will only apply when ‘outsiders’ make a reckless disclosure that endangers health or safety or prejudices an SIO.

“Recklessness means the person is aware of a substantial risk of those circumstances arising and chooses to publish the information anyway.

“This will make it harder to prosecute journalists compared with the offence as it stands. It does not address the major issue with the offence – that Section 35P does not provide any scope for journalists to disclose information in the public interest.

“A journalist may be aware of a substantial risk that disclosing information may prejudice an SIO but believes that the public should be informed about some unlawful or inhumane conduct in which ASIO officers are involved such as torturing or blackmailing a suspect.

“’Until a public interest exemption is included in Section 35P, the offence will have a significant impact on press freedom and the media’s ability to report on ASIO’s activities.

“Such an exemption could allow the reporting of significant unlawful activity or serious misconduct involving ASIO officers. This would strike a fair balance between protecting the SIO regime’s secrecy while letting journalists report responsibly on issues of public importance.”

A full version of Dr Hardy’s article can be read here.
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