Only "reckless" reporting by journalists would be subject to new national security reforms that would jail those who disclose information about so-called "special intelligence operations" conducted by Australian spy agencies, the Attorney-General's Department says.
The comments came after numerous lawyers and Australian media organisations, including Fairfax Media, publisher of this article, rounded on one particular change that makes it an offence if a person "discloses information ... [that] relates to a special intelligence operation" and does not state any exemptions, meaning it could apply to anyone, including journalists, bloggers and spy agency leakers.
Those who disclosed such information would face tough new penalties of up to 10 years' jail.
The lawyer for whistleblower and former US National Security Agency contractor Edward Snowden, Jesselyn Radack, has previously labelled the legislation as "draconian" and "chilling".
"There are not ... exemptions for journalists," David Irvine, director general of Intelligence and Security at ASIO, told the Parliamentary Joint Committee on Intelligence and Security last Friday, which is looking into the reforms.
"The offences do not target journalists," Jamie Lowe, Assistant Secretary at the Attorney-General’s Department, added.
"They apply broadly and there are elements of them being designed so that they will not apply to legitimate reporting of national security matters."
Ms Lowe said that because it was unlikely journalists would be in contact with intelligence sources, it would also be unlikely that they would be targeted by the proposed offences.
"Journalists are not, in their ordinary course of duties, likely to be in such a relationship with an intelligence agency under which they would obtain legitimate access to intelligence-related information or records and, as such, those offences are very unlikely to apply to such persons," she said.
Despite this, Australian media companies have argued in a joint submission that the proposed law that jailed disclosers would "erode freedom of communication and freedom of the press".
"The insertion of proposed section 35P could potentially see journalists jailed for undertaking and discharging their legitimate role in a modern democratic society – reporting in the public interest," the submission reads, representing AAP, ABC, APN, ASTRA, Bauer Media, Commercial Radio Australia, Fairfax Media, FreeTV, MEAA, News Corp Australia, SBS and The West Australian.
"Such an approach is untenable, and must not be included in the legislation," they said.
The Law Council of Australia, Australian Lawyers Alliance, Civil Liberties Australia and news organisation The Guardian filed separate submissions making similar arguments.
The Australian Lawyers Alliance said the reforms would "have a prejudicial impact on journalists reporting on intelligence operations".
"This is an unprecedented clause," the alliance said.
In fact, a similar anti-leak clause does already exist in the Crimes Act, to protect disclosure of federal police doing similar covert operations.
The special federal police operations clause doesn't contain exemptions for who reveals information, meaning journalists could be prosecuted under it, too. But unlike the new proposal for ASIO, the covert police operations require a warrant to be sought before carrying out activities. The proposed spy agency special intelligence operations don't require judicial or ministerial oversight.
The confirmation that journalists are not exempt is unlikely to ease media organisation's concerns.
Labor Senator Penny Wong pursued the issue at length on Friday and had Attorney-General's Department officials concede that a person disclosing information could be jailed if they did not know for certain that what they were revealing related to a special intelligence operation.
"It requires awareness of a substantial risk," Ms Christina Raymond, senior legal officer in the National Security Law and Policy Division of the Attorney-General's Department, said.
"...So you do not have to have actual knowledge, but you do have to have an awareness of a risk, so more than just a fleeting possibility – something quite substantial," Ms Raymond said.
The creation of special intelligence operations allows ASIO and its overseas counterpart ASIS to run operations that are designed to allow their officers to engage in activities that would otherwise be criminal or breach civil law, though excludes murder, serious assaults or sexual assault.
In December, ASIO officers detained a man in Canberra, allegedly an ASIS whistleblower, and raided the office of lawyer Bernard Collaery who claimed that Australian spies bugged the cabinet room of East Timor's government during negotiations over $40 billion worth of oil and gas deposits. Mr Irvine was head of ASIS when the alleged bugging operation took place.
The matter was before the International Court of Justice in The Hague at the time of the raid, and Australia was ordered by the court in March this year to cease spying on East Timor and its legal advisers.
Under the reforms, there's a possibility future activities like this could be labelled special intelligence operations and that disclosing their existence would result in jail for both whistleblower and journalist.
"It is questionable as to whether reporting on the ASIO raids on Mr Collaery’s offices would have constituted an offence," the Australian Lawyers Alliance said in its submission. "Similarly, whistleblowing or even reporting on the alleged bugging of Timor Leste’s government cabinet room, may also have constituted an offence. Isolating potentially serious abuses of government power from public scrutiny is dangerous and liable to abuse."
No judicial or ministerial approval is needed to declare an activity a special intelligence operation. Instead, the head of ASIO or one of their deputies can approve it. Internal reporting of their existence is then given to the Attorney-General and the Inspector General of Intelligence and Security every six months as a way of oversighting the activities after they occur.
Mr Irvine said that because of the secrecy surrounding such operations, ASIO should be trusted with approving special intelligence operations without judicial or ministerial oversight.
"...Sometimes the extreme sensitivity of what you are doing needs to be held very closely," he said. "Up until now the act has put its trust in the director-general to conduct the activities appropriately. I for one did not see any need ... to now bring in a judicial or external level of approval."
with David Wroe
