Australian Press Council submission to the Attorney-General's Department on its Discussion Paper on the review of National Security Legislation.

September 30, 2009

The Australian Press Council recognises the circumstances that led the Commonwealth to introduce legislation to enable authorities properly to deal with threats of terrorism within Australia. In the circumstances that existed in the wake of the September 2001 and October 2002 terrorists incidents, the government of the day was required to draft legislation that addressed the perceived threat to Australia. Given the effluxion of time, with the better understanding of the situation that comes with greater knowledge, the Council agrees that it is time for a thorough rethink on the security legislation as it has been developed since 2001.

The Council's Charter for a Free Press has as one of its principles, "Laws, regulations and practices which in any way restrict or inhibit the right of the press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people's right to know". The Council argues that any laws granting powers to authorities that may impinge on the traditional freedoms of Australians must be drafted to ensure that the granted powers are sufficient to meet the envisaged threat, without going too far in inhibiting rights. The Council's primary concern with the existing security legislation is that, on occasion, it appears to go further than is required and should be reconsidered. This is particularly the case with the sedition provisions in the Criminal Code Act.

Given the issues raised in this submission, and in previous Council submissions, the effect that the existing legislation might have on the ability of the press to report on matters of public concern, the Council calls on the government to ensure that security legislation is reviewed more frequently than has so far been the case, and that any provisions with a tendency to restrict the ability of the press freely to report matters of public concern should carry sunset clauses.

It is the Council's general view that security legislation needs to be carefully thought through and drafted to ensure that the powers given to the police, security services and others by such legislation is limited to those required to deal with the threat of terrorism. Such powers should not act as an undue impediment to the freedoms traditionally enjoyed by Australians, including freedom of expression, freedom of association and freedom from arrest and detention without due cause.

The Council also notes that Senator Ludlam's Anti-Terrorism Laws Reform Bill 2009, currently before the Senate addresses directly many of the concerns the Council has with the over-reach of some aspects of current federal security legislation. In areas such as the repeal of sedition offences, amending the provisions applying to proscription of a terrorist organisation and ensuring that providing support for a terrorist organisation should amount to "material support", and not just an analysis of it, before it becomes an offence, the Anti-Terrorism Laws Reform Bill 2009 does wind back some of the matters that the Council thinks need to be dealt with.

In this submission, the Council addresses some of the specific matters raised in the discussion paper and in the draft National Security Legislation Amendment Bill 2009 and raises a couple of issues not addressed in the Discussion Paper relating to existing security legislation.

Sedition offences

The Council supports the repeal of s80.2 the Criminal Code Act 1995, which establishes the offences of sedition.

In several previous submissions the Press Council has argued against sedition laws or, if there are to be sedition laws, that the offences should be limited. Specific matters raised included:

• that the mere existence of offences of sedition has the effect of making people cautious about publishing material that may potentially be regarded as seditious, i.e. that the laws create a "chilling effect";
   
• that there should be a media exemption to sedition provisions in order to protect journalists, publishers and broadcasters from prosecution and that such an exemption should also apply to others who engage in expression of opinion;
   
• that the legislation should not apply to incitement of terrorism but that the offence should refer to use of "force and violence";
   
• that, in relation to urging assistance to an enemy, that sections 80.2(7) and 80.2(8) are "characterised by a broad scope the precise limitations of which are vague and difficult to gauge".

Consistent with its long-held position that sedition laws are an impediment to freedom of expression, have the potential to have a "chilling effect", making publications more cautious about printing material that may potentially be regarded as seditious, and have the potential to interfere with the public right to know, the Council supports the removal of sedition offences in their entirety.

The conduct addressed by the section is already adequately addressed by those sections of the criminal code that deal with offences of inciting the commission of an offence. If, as the Discussion Paper argues, it is felt necessary to a new set of "urging violence" offences, those offences should be framed narrowly and not replicate laws already existing in areas like anti-vilification law.

Treason offences

The Council supports the proposed amendments to the treason offences in Division 80 of the Criminal Code Act 1995 to provide that conduct must "materially" assist an enemy. It is strongly of the view it must be clear that rhetoric or expressions of dissent are not sufficient to constitute a treasonable offence.

Any such provisions should include the "criminal intent" element. Rather than it being a possibility that conduct can breach the law, it must be shown that this was the intent of an action.

Possession of a Thing

In relation to s101.4 Possession of a Thing, Sen. Ludnam's Second Reading speech pointed out that a "thing" could be just about any object, given the lack of a precise definition, and that there is no requirement that the "thing" in question be linked to a terrorist act. There is a need for parameters restricting what may be included within the scope of a "thing" in this section. The speech included an example of what could be reckless possession: if someone were to pass along a DVD, recommending that the contents be viewed. Another cited example, which has been discussed in the courts, involves a document on a computer, where the case was lost because it was possible to show, through forensic evidence, the absence of an electronic path and to show that the document had not been accessed.

Given the examples, reckless possession of a thing could include information received by journalists in the course of their normal work.

In view of the lack of precision in the definition of a "thing", and that there is no requirement that possession of a "thing" be linked to a terrorist act, the Press Council is concerned that journalists could be exposed to being charged with a serious offence should they inadvertently come into possession of material in the course undertaking their role. The current provision is unsafe and the Council supports the repeal of the provision.

In the event that s101.4 is not repealed, then the Council recommends that the section be amended to ensure that "thing" be more precisely defined and that, in order for there to be an offence, possession must be linked to a terrorist act.

Definition of "terrorist organisation"

In relation to the process for proscribing a terrorist organisation, the Sheller Committee report recommended that the process of proscription be reformed to meet the requirements of administrative law. The power to proscribe remains with the Governor-General on the advice of the Attorney-General.

The amendment proposed by Sen. Ludlam provides for:

• notification of when proscription of the organisation is proposed;
   
• a means and right for the persons or organisations to be heard in opposition;
   
• the appointment of an advisory committee that is independent to the process to advise of cases that have been submitted for proscription;
   
• publicity about the advisory committee;
   
• public consultation and receipt of submissions;
   
• publicity of proscribed organisations and notice to members of their possible exposure to criminal prosecution;
   
• merits review by the Administrative Appeals Tribunal of a decision to proscribe;
   
• standing rules to protect anyone seeking review from automatically finding themselves admitting to criminal offences.

The proposed process would be open to public and media scrutiny.

The Press Council supports the proposed amendments in the Ludlam Bill that would bring the processes for proscribing a terrorist organisation in line with the requirements of administrative law. By ensuring publicity, public consultation, consideration of submissions by an independent advisory committee, notice and a right of appeal the proposed amendments increase transparency, public and media scrutiny and enhance the public right to know.

Providing support to a terrorist organisation

In relation to the offence of providing support to a terrorist organisation, current legislation makes the scope of the offence too wide. The Council suggests that the section be amended so that it refers to "material support" and that, in order for there to be an offence, the person must be either reckless or intend that the material support or resources will be used by a terrorist organisation to engage in terrorist activity.

The Human Rights and Equal Opportunity Commission has argued, and the Sheller Committee accepted, that under the current legislation "support" could extend to the publication of views that appear to be favourable to a proscribed organisation and its objective and that this would be an unwarranted interference with freedom of expression.

An amendment that seeks to implement the recommendation of the Parliamentary Joint Committee on Intelligence and Security to ensure that words are not caught by the section and that there is a requisite connection between "support" and a terrorist act should be included in the proposed legislation.

The Council supports amendments to s102.7 to ensure that providing support to a terrorist organisation cannot be construed to apply to the publication of view favourable to a proscribed organisation or its objective. By narrowing "support" to "material support", and by ensuring that there is a requisite connection between material support and a terrorist act, an amendment would ensure that words are not caught by the provision and thus that the section is not an unwarranted interference with freedom of expression.

Classification (Publications, Films and Computer Games) Act 1995

The Australian Press Council objected to the proposed 2007 changes to the classification scheme intended to prevent the publication of material that advocates terrorism. The Council was of the view that the proposed amendments are unnecessary and have the potential to impede freedom of speech and of expression.

The Press Council is of the view that the definition of "advocate" that is used is too broad. It believes that, as a result of the current Act, there is a potential to prevent the publication of material that provides information or commentary and that is appropriate subject matter for public discourse. The proposed amendment to alter "risk" to "substantial risk"(that such praise might have the effect of leading a person ... to engage in a terrorist act) as the judgment on when advocacy might lead to a charge is an improvement and ameliorates some of the concerns expressed by the Council. However, the continued presence of the phrase "or indirectly" in clauses 9A(2)(a) and 9A(2)(b), so that the advocacy can be either "direct or indirect", still leaves the provision as far too broad, and runs the risk of catching within its provisions legitimate news reporting, and commentary upon that news. The Council recommends that, in addition to the inclusion of "substantial in subsection (c), the words "or indirectly" be removed from subsections (a) and (b).

The Australian Security Intelligence Organisation Act 1979

Neither the Discussion Paper nor the draft legislation addresses concerns with the ASIO Act. The Council has expressed concerns with aspects of this legislation.

Sen. Ludlam's Bill addresses some of these, including the excessive time given for continuation of detention without charge at 168 hours and the possibility of extension beyond that by use of "rolling warrants".

Consistent with its position in its April 14, 2005 submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD into Division 3 of Part III of the ASIO Act, the Press Council express its concerns that this Division 3 Part III of the Act poses a threat to freedom of speech and has the potential to obstruct the ability of the media to ensure that government agencies are held to public account and that the questioning and detention practices of ASIO do not go beyond what is necessary to facilitate the investigation and prevention of terrorism.

The Council supports the repeal of s34K(10), s34ZP, s34ZR, s34ZT so that others may be present to witness and scrutinise the questioning of persons who are subject of warrant and the repeal of s34ZS(2) that creates an offence for disclosure of operational information or information related to the issue of a warrant.

In the event that s34ZS(2) is not repealed, Council proposes that the section be amended to require proof that there is a threat to national security resulting from the disclosure in order to establish an offence.

The National Security Information (Criminal and Civil Proceedings) Act 2004

The objective of this Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where disclosure is likely to prejudice national security.

The Act sets out procedures that apply where information that may prejudice national security could be disclosed by the prosecutor, defendant or other person.

In its submission to the Australian Senate Legal and Constitutional Committee Inquiry into the National Security Information Legislation Bill 2005 the Council indicated that the Act, as it was at the time, was a threat to freedom of the press in Australia and that amendments to extend the application of the Act to include civil proceeding in addition to criminal proceedings would extend that threat (the Act as it is currently applies to both criminal and civil proceedings).

The Council recommended that, given the long-term potentially oppressive nature of the legislation, that parliament insert a sunset clause into the legislation.

The Council's specific concerns were:

• That the definition of national security is too broad;
   
• That there is a need to include in the legislation a safeguard that would prevent the Attorney General, when issuing a certificate that describes the information and limits how the potential discloser can disclose such information, must not issue the certificate for improper purposes;
   
• That the media be given standing to make representations at hearings that determine whether information should be disclosed;
   
• That mechanisms that have the potential to restrict access to documents should not be made by regulation but only by parliament and therefore there should not be any extension of existing powers to make regulations.

Consistent with its earlier submission, the Press Council holds the view that the National Security Information (Criminal and Civil Proceedings) Act remains a threat to freedom of the press and is potentially oppressive. The Council supports repeal of this legislation.

Telecommunications (Interception and Access) Act 1979

Another piece of security-related legislation extended during the years after September 2001 was the Telecommunications (Interception and Access) Act 1979. The Telecommunications (Interception) Amendment Act 2006 allows spies, police and other security agencies to tap the phones of third parties to suspected terrorist plots. Other agencies, including agencies unrelated to security, will have the power to access stored communications such as e-mails and SMS. This new law targets anyone who interacts with suspects of serious crime, though they themselves are not suspected of anything.

Conversations between journalists and their sources may be intercepted. Those journalists who contact terror suspects for a story may have their phone tapped, giving authorities access not only to conversations with the suspect but those of other, innocent, sources. At any time police could be listening, obliterating any professional right the journalist has to protect the confidentiality of their sources.

This law has the potential to deter confidential sources but may also lead to a culture of self-censorship. Without public faith in a journalist's promise to protect sources, much crucial information in the public interest would not come to light.

In reviewing security-related legislation, amendments need to be made to the Telecommunications (Interception and Access) Act to ensure that there need to be warrants, issued by a judge, before telecommunications can be intercepted.

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See also
Submission to the Senate Standing Committee on Legal and Constitutional Affairs on its inquiry into the Anti-Terrorism Laws Reform Bill 2009

Return to
Submissions list
Freedom of the Press overview

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