Independent National Security Legislation Monitor Review of Section 35P of Theaustralian

Submission to the

Independent National Security Legislation Monitor review of section 35P of the Australian Security Intelligence Organisation Act 1979

20 April 2015

Submitted by Amnesty International Australia

Contact: Guy Ragen

Title: Government Relations Adviser

Email: [Redacted from public submission, Office of the Independent National Security Legislation Monitor.] Phone: [Redacted from public submission, Office of the Independent National Security Legislation Monitor.]

About Amnesty International

Amnesty International is the world’s largest independent human rights organisation, comprising more than seven million supporters in more than 160 countries including 500,000 supporters in Australia.

Amnesty International is a worldwide movement to promote and defend all human rights enshrined in the Universal Declaration of Human Rights (UDHR) and other international human rights instruments. Amnesty International undertakes research and action focused on preventing and ending abuses of these rights.

Amnesty International is impartial and independent of any government, political persuasion or religious belief. Amnesty International Australia does not receive funding from governments or political parties. 1. Summary

1.1 Amnesty International welcomes the opportunity to respond to the Independent National Security Legislation Monitor’s review of the operation of section 35P of the Australian Security Intelligence Organisation Act 1979, concerning offences for the disclosure of information relating to a ‘special intelligence operation’.

1.2 The Monitor’s role includes consideration of whether the Australian Government’s suite of national security laws contain appropriate safeguards for protecting the rights of individuals, are proportionate to any threat of terrorism or national security threat, and remain necessary.

1.3 Given the legislative amendments were only passed by the Parliament in October, 2014, it is important to note that the Monitor’s review is taking place very early in the life of the new s35P. With this in mind, the full extent to which s35P may impact journalists in Australia cannot be fully known. Further reviews are likely to be necessary in order to assess the full impact of s35P.

1.4 While acknowledging this, Amnesty International holds concerns about the impact of s35P. Under s35P journalists and other individuals face significant prison terms for reporting on a special intelligence operation. Amnesty International is particularly concerned that there are no explicit time periods on the limits to reporting on a special intelligence operation and that the legislation contains no public interest defence to a breach of s35P.

1.5 In essence, the offences created under s35P as they currently stand represent an unreasonable limit to the right of freedom of expression.

2. Recommendations

2.1 Amnesty International recommends the Australian Government: 3. Introduce a public interest defence to s35P offences as a matter of priority; 4. Introduce an explicit time limit to when public acknowledgment of a special intelligence operation will cease to be in breach of s35P; and 5. Commit to further reviews into the operation of s35P once the impact on journalists can be more fully assessed.

3 6. Section 35P and the right to freedom of expression

6.1 Amnesty International acknowledges the primary role of governments to protect both citizens and those within its national borders. Such protection measures must be consistent with international human rights standards, in accordance with Australia’s international legal obligations.

6.2 Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party, concerns the freedom of expression. Part of article 19 reads:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.1

6.3 The rights provided for in the ICCPR carry responsibilities, which are subject to restrictions, but only when such restrictions are provided by law and are necessary. In the case of Article 19, these are respect for the rights and reputations of others, and the protection of national security or public order.

6.4 In its submission to the Parliamentary Joint Committee on Intelligence and Security’s inquiry into the National Security Legislation Amendment Bill (2014), the Human Rights Commission provided a succinct discussion of the ways in which Article 19, and its limitations, have been interpreted.2 While it is not necessary to retread this ground here, it should be re-emphasised that any limitation on the freedom of expression must be necessary, proportionate, achieve a legitimate objective and not destroy the essence of the right. A party to the ICCPR must demonstrate the legal basis for any restriction.

6.5 By placing an effective prohibition on disclosing information regarding a special intelligence operation, s35P is a direct and concrete limitation on the freedom of expression as enshrined in Article 19. It criminalises what would ordinarily be part of the job of the media in an open democracy – being able to freely report. Put another way, the freedom of expression is not simply the right of an individual to speak their mind, but includes the right to access information. Placing such a limit on this right – indeed, criminalising part of its operation – is troubling.

7. The potential scope of Section 35P

7.1 One question which has not been adequately addressed by the Australian Government, is how wide and common a “special intelligence operation” will be in practice. This, arguably, relates to whether the limitations on the freedom of expression will be reasonable. Is a “special intelligence operation” only going to be an extraordinary operation where the risk to national security is real or imminent?

7.2 In essence, the concern is that special intelligence operations could begin to occupy more and more of ASIO’s work. The prohibition on reporting such operations under s35P could arguably lead to a situation where the ordinary duties of Australian intelligence and law enforcement are placed beyond the realm of journalists’ ability to report.

7.3 While the legislation specifically limits a special intelligence operation to a 12 month period, the offence is not time-limited – i.e. even years after a special intelligence operation has taken place it still cannot be disclosed.

1 International Covenant on Civil and Political Rights (ICCPR), art 19. See http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

2 Human Rights Commission, Submission to the Inquiry into the National Security Legislation Amendment Bill (2014), pp7-9, accessed http://www.aph.gov.au/DocumentStore.ashx?id=a57c6ba2-a39a-4cd2-b944- 35328ec4050f&subId=299525 7.4 Amnesty International acknowledges that there may be a pressing national security need to avoid the public reporting of a special intelligence operation while it is actually taking place, but logically, the national security implications of its release would fade over time.

7.5 This raises questions, not only for the work of journalists but, as time goes on, academics. Will an historian in 2050, researching how Australia dealt with terrorism in 2015, be facing a possible prison sentence for reporting on a 35 year old intelligence operation?

7.6 A balance between a government’s national security obligations and the right to freedom of expression must be struck. Placing special intelligence operations beyond disclosure for all time tips this balance too far.

8. Section 35P and the lack of a public interest defence

8.1 Amnesty International believes there needs to be a public interest defence to s35P.Section 35P’s current exception – that disclosure has taken place because of a legal requirement – does not go far enough. As the Law Council of Australia has pointed out, the section gives rise to the possibility that journalists, lawyers or whistle-blowers may intentionally disclose information they genuinely believe to be in the public interest because they are reporting “corruption, misconduct or the abuse of power.”3

8.2 Given a participant in a special intelligence operation will not be subject to any criminal or civil liability for conduct carried out during the operation, subject to limitations, 4 there must be some protection for the public interest here. The ability for agencies to operate beyond the realm of potential civil or criminal penalty, and without any possibility that their actions will be made public is a fairly extraordinary placement of power in the hands of the state.

8.3 As Amnesty International has argued elsewhere, there are times when the public interest in being made aware of information outweighs a government’s interest in keeping it confidential.5 A public interest defence does not automatically give someone the right to breach s35P, but does allow a whistle-blower to provide a full account of their motives.

8.4 The fact s35P leaves no room for disclosure in the public interest is another aspect which tips the balance too far in one direction. Section 35P must be amended to include a public interest defence.

3 Law Council of Australia, Section 35P – Unauthorised Disclosure of Information relation to the special intelligence operations, accessed at http://www.lawcouncil.asn.au/lawcouncil/images/2015_02_23_Section_35P_factsheet_web.pdf

4 See s35K, ASIO Act 1979

5 See https://www.amnesty.org/en/articles/news/2013/06/usa-must-allow-bradley-manning-use-public-interest-defence/ and http://www.amnesty.org.au/news/comments/32197/

5 9. Conclusion

9.1 Amnesty International holds that s35P, as currently legislated, tips the balance too far towards national security interests at the expense of human rights protections for Australians.

9.2 In order to remedy this situation the Government should introduce a public interest defence to the two offences created by s35P, as well as time limits to when the secrecy surrounding a special intelligence operation recedes.

9.3 Section 35P must also be subject to further and ongoing reviews. This review is taking place too early in the life of the new offence to attain a proper understanding of its potential to impact the right to freedom of expression.