Government response to INSLM Report on the impact on journalists of section 35P of the ASIO Act 1979

Section 35P of the ASIO Act should be redrafted to treat ‘insiders’ and ‘outsiders’ separately, with one part dealing with third parties and another part dealing with insiders. There should be a basic offence and an aggravated offence in relation to both insiders and outsiders (four offences in all).

Government response: Supported

The Government agrees with all of the Monitor’s recommendations.

The Government responses to the INSLM’s recommendations will ensure that an inadvertent disclosure by an outsider will not result in a criminal offence.

The Government agrees that insiders and outsiders should be treated differently to reflect the higher standard of conduct that insiders should rightly be held to in relation to their use, handling and disclosure of sensitive information.

The Government will amend section 35P to create separate offences for insiders and outsiders and there will be four offences in all. The basic offence and the aggravated offence for insiders will remain the same as the current section 35P offences.

The new measures will include a specific harm element requirement in the basic offence for outsiders, a higher fault element in the aggravated offence for outsiders, and a defence of prior publication (see recommendations 2-6 below).

Insiders will also continue to be subject to a separate non-disclosure offence regime under section 18 of the ASIO Act. This is a broad offence regime punishable by up to 10 years imprisonment.

The basic offence and the aggravated offences for insiders would be as per current section 35P.

Government response: Supported/Implemented

The Government agrees that insiders should continue to be held to a higher standard of conduct in relation to their use, handling and disclosure of sensitive information.

Accordingly, the basic and aggravated offences for insiders will remain the same as the current section 35P offences.

The basic offence for outsiders would have the same elements as subsection 35P(1), but with the additional physical element that the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of an SIO. Recklessness would be the default fault element in relation to this last physical element.

Government response: Supported

The Government will amend the basic offence for outsiders to include a physical element of harm. Recklessness will be the default fault element attached to the physical element of harm.

The aggravated offence for outsiders would have the same elements as subsection 35P(2) except that the fault element for (c)(ii) should be knowledge rather than recklessness (in other words, the fault element for the circumstance that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of the operation should be specified to be knowledge).

Government response: Supported

The Government will amend the aggravated offence for outsiders so that knowledge rather than recklessness is the fault element attached to the physical element of harm. The fault element will be explicitly referred to within the text of the provision.

There should be a basic offence (penalty five years imprisonment) and an aggravated offence (penalty 10 years imprisonment) in relation to both insiders and outsiders.

Government response: Supported

The Government agrees with the Monitor’s recommendation that the penalties for the offences for both insiders and outsiders should remain the same, that is a maximum sentence of imprisonment for 5 years for the basic offences and a maximum sentence of imprisonment for 10 years for the aggravated offences.

There should be a defence of prior publication (not available to a member or ex-member of the intelligence and security services in respect of information available to them in that capacity). The defence should require the defendant to satisfy the court that:

• the information in question had previously been published
• having regard to the nature and extent of that prior publication and the place where it occurred, the defendant had reasonable grounds to believe that the second publication was not damaging, and
• the defendant was not in any way directly or indirectly involved in the prior publication.

Government response: Supported

The Government agrees with the Monitor’s recommendation that there should be a defence of prior publication. The defence will not be available to ASIO employees, affiliates, etc. in relation to information available to them in that capacity.

The Government considers that prior to any secondary publication, an individual must take reasonable steps to ensure the proposed publication is not likely to cause harm. The Government will work with stakeholders to amend section 35P to include a defence of prior publication.