General Press Release No. 255 (December 2002)

ASIO Terrorism Bill

The Australian Press Council is concerned that proposals contained in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 will have an adverse effect on media reporting and on the public's right to information on matters of public importance and concern in Australia. The Council is also concerned about the wider ramifications of this legislation on freedom of speech in Australia.

The Bill seeks to obtain information about putative terrorist acts in Australia by empowering ASIO to seek warrants which allow the detention and questioning of persons who may have information that may assist in preventing terrorist attacks or in prosecuting those who have committed a terrorism offence. The Council recognises that the Bill contains a number of safeguards by providing for a very circumscribed set of procedures for the issuing of such warrants but remains concerned that the breadth of this power to detain and interrogate could affect journalists in their role as gatherers, holders and providers of information.

The Council notes that it is Government's intention that the powers to detain and question be used only as a last resort, and in extreme circumstances. Nevertheless, it is a matter of concern that the proposed legislation enables journalists to be detained on the mere suspicion that they hold information that may relate to terrorist activity and that they may be held incommunicado and questioned, without legal representation, for 48 hours.

The Council has further concerns with aspects of the Bill:

• it provides for a strict liability offence (with a possible five-year jail term) if a person does not appear for questioning when required to by a warrant;
   
• there is a possible jail term of five years for a person who declines to give information or produce a requested record; and
   
• the evidentiary burden of proving that the person does not have the requested record lies on the person - a reversal of the normal burden of proof.

While journalists' communications with sources are not currently protected by a legal privilege, journalists are bound by their code of ethics not to reveal confidential sources of information. It is a matter of concern that the Bill might place journalists in a position of conflict with this professional obligation. While the main code of ethics provides that "substantial advancement of the public interest or risk of substantial harm to people allows any standard to be over-ridden", the Bill provides no scope for journalists to maintain undertakings of confidentiality without being exposed to a lengthy jail term.

The Council's concern about the impact of the Bill on journalists and their ability to report is matched by its concern that a broader public interest is at stake: the free flow of information essential to a functioning democracy.

Freedom of speech is widely recognised as fundamental to democracy. In Australia in particular, this has been recognised in relation to matters of government and politics, with the High Court of Australia acknowledging an implied right to freedom of speech in relation to those matters. It has also been recognised as a relevant factor by courts in considering whether to order journalists to disclose confidential sources.

The Council understands the fundamental importance of the protection of national security. However, the Council calls on the Parliament in its consideration of the Bill to ensure that, in its desire to enact laws to protect Australians from the threat of terrorism, it does not create a threat to the freedom of speech, and of the press, through laws which provide the security forces with powers which may threaten the establish freedoms which are a cornerstone of a liberal democracy.

see also
Annual Report 26 on the Criminal Code (Espionage and Related Offences) Amendment Bill 2001

[ return to top ]