Concerns remain about the impact of Australia’s national security laws on journalists despite the government’s decision to implement new legal safeguards in section 35P of the Australian Security Intelligence Organisation Act.
The legislation covers the unauthorised disclosure of information relating to special intelligence operations and was subject to an independent inquiry after concerns were raised it could lead to journalists being jailed for doing their job.
The changes were recommended in a report by the Independent National Security Legislation Monitor published on Tuesday. It found section 35P “does not contain adequate safeguards” for those outside of ASIO and “is not proportionate to the threat of terrorism or the threat to national security”.
“Section 35P is arguably invalid on the basis that it infringes the constitutional protection of freedom of political communication,” the report said.
The report did however argue the special intelligence operation scheme was necessary and “proportionate to the present threats to security”.
The proposed changes focus on a different treatment for those inside and outside of ASIO, although there is no change in the penalties. Under the proposals, it will be more difficult to mount a prosecution against an outsider. The government also will introduce a defence for those who republish sensitive information already in the public domain in certain circumstances.
While these changes represent a step in the right direction, media companies that made submissions to the federal government under the banner of Joint Media Organisations still hold concerns.
Joint Media Organisations is a coalition of media companies and organisations that includes News Corp Australia, Fairfax Media, APN, The West Australian, The Newspaper Works and Free TV Australia.
A spokesperson for the coalition said its members were concerned journalists still faced the risk of being jailed for doing their job under other sections of national security legislation.
“We have identified a number of issues with the recent national security laws that require amendment to ensure journalists do not face criminal sanctions and jail time for reporting in the public interest,” the spokesperson said.
“These include the serious risk to innocent publication of advertisements and news items, a lack of exemptions for good faith reporting and unintended consequences of drafting that infringe news gathering introduced in the Foreign Fighters Bill – now laws in the Criminal Code and the Crimes Act”.
Tim Vines, vice president of advocacy group Civil Liberties Australia, said if the government honours its commitment to adopt all of the inquiry’s recommendations it would mark “a significant improvement in what was a very heavy handed offense provision”.
However he said significant issues remain including what the amended legislation will look like, how the “prior publication” defence would function and how these changes will affect the relationship between journalists and whistle-blowers.
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