Joint Media Organisations' submission to INSLM inquiry into s35P of the Asio Act
Joint Media Organisations’ (including MEAA) submission, and supplementary submission, to Independent National Security Legislation Monitor’s inquiry into the impact on journalists in the operation of section 35P of the ASIO Act.
“While we acknowledge that the current review is limited in scope to section 35P of the ASIO Act we note the Ministerial Direction issued under subsection 8(1) of the Director of Public Prosecutions Act 19831 (the Ministerial Direction) on 30 October 2014. It says:
The Director must not proceed with a prosecution of a person for an alleged contravention of the following sections without the written consent of the Attorney-General:
(a) section 35P of the ASIO Act;
(b) section 15HK of the Crimes Act
(c) section 15HL of the Crimes Act; or
(d) section 3ZZHA of the Crimes Act
where the person is a journalist and the facts constituting the alleged offence relate to the work of the person in a professional capacity as a journalist.
We observe that the Ministerial Direction applies to four ‘unauthorised disclosure of information’ provisions as they apply to journalists – while only one of which (section 35P of the ASIO Act) is the subject of the Monitor’s review. We encourage the Monitor to include all of these provisions in the current review, particularly as:
– section 35P of the ASIO Act has been justified by the existence of sections 15HK and 15HL of the Crimes Act 1914 (Crimes Act);
– section 3ZZHA of the Crimes Act was enabled by the second tranche of national security legislation, the Counter-Terrorism Legislation (Foreign Fighters) Amendment Bill 2014 (Foreign Fighters Bill); and
– all four provisions are ‘unauthorised disclosure of information’ provisions.
Therefore we include in this submission material that addresses sections 35P of the ASIO Act; sections 15HK and 15HL of the Crimes Act; and section 3ZZHA of the Crimes Act.
All tranches of the 2014-2015 national security amendment bills enacted provisions that limit freedom of the media, and require review by the Monitor
The media organisations that are parties to this submission do not seek to undermine Australia’s national security, nor the safety of the men and women involved in intelligence and national security operations. We are however keen to engage constructively on matters that infringe on freedom of the media to report in the public interest.
To that end, and as the Monitor is aware, the Joint Media Organisations made submissions to the parliamentary review processes of the three tranches of national security amendment enabling legislation. We remain concerned about the provisions that limit freedom of the media separately and in aggregate. These provisions make it increasingly difficult for news gathering and reporting in the public interest. This does not in any manner support the Australian public’s right to know.
Due to the similar nature of the limitation on freedom of the media we also include in this submission material regarding the provisions in the Foreign Fighters Bill regarding section 119.7 of Division 119 of Part 5.5 of the Criminal Code Act 1995, particularly subsections 119.7(2) and 119.7(3).
Lastly, while the current review is officially focused on section 35P of the ASIO Act, we note that the Monitor welcomes submissions relating to other matters. We will therefore make a separate submission regarding the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.”