BY JOO-CHEONG THAM
The ASIO Legislation Amendment Bill 2003 proposes to amend the Australian Security Intelligence Organisation Act 1979 in a far-reaching manner, by inserting additional secrecy provisions into the act's detention and questioning regime.
This regime presently allows people suspected of having information related to a "terrorism offence" to be either detained or subject to compulsory questioning. Both detention and compulsory questioning need to be authorised by a warrant.
The act presently restricts the communication of certain information by the person being detained or questioned; his or her legal adviser and her or his representative, parent, guardian or sibling.
Secrecy offences
The new bill will extend these secrecy provisions by introducing two separate criminal offences. Both offences are punishable by a maximum of five years' imprisonment.
If passed, the bill will generally make it an offence for any person to disclose information that reveals that a warrant has been issued, the content of such a warrant or facts relating to the detention or questioning of a person under such a warrant — while such a warrant is in force. A warrant can be in force for a maximum of 28 days.
Under this bill, it will also be an offence, for two years after the expiry of a warrant, to disclose information that is "operational information", if such information in/directly resulted from conduct in issuing or pursuing of a warrant.
The bill proposes a broad definition of "operational information". This term is defined to mean one of the following: information that ASIO has or had; a source of information that ASIO has or had; or an operational capability, method or plan of ASIO.
In effect, "operational information" is defined to mean information relating to ASIO's knowledge and activities.
With both these offences, a disclosure is not illegal if it is a "permitted disclosure".
A "permitted disclosure" is narrowly defined to include disclosures: made by a person exercising powers under the act; made for some specified legal purposes; and that have been authorised by a prescribed authority, the director-general of ASIO or the attorney-general.
Examples of offences
Under this bill, the following will clearly be offences:
* Journalists reporting on the issue of a warrant soon after it was issued even if the warrant was issued illegally or reporting on the conditions under which people are currently detained even if such conditions might not comply with the act;
* Parliamentarians highlighting the conditions under which persons are presently detained under the act; and
* Groups publicising the conditions under which persons are presently detained under the act.
The breadth of the offence relating to "operational information" can be illustrated by the following scenario: ASIO, in conjunction with Australian Federal Police, detains a person under the act because she or he is suspected of having relevant information. Details of such detention come to the knowledge of a journalist who suspects certain irregularities in ASIO's investigation.
The bill, if passed, will make it an offence for such a journalist to report on:
* The conditions of the detention for two years after the expiry of the warrant;
* ASIO's subsequent investigation into the detainee for two years after the expiry of the warrant, whether or not such investigation involves conduct under a warrant.
These offences are committed because the information resulted from conduct pursuant to a warrant, i.e. detention; and clearly involves "operational information" as the information will relate to ASIO's activities.
In effect, the "operational knowledge" offence will prohibit the disclosure of most information relating to ASIO's activities where a warrant under the act has been issued.
The offences proposed by the bill, in particular, the "operational knowledge" offence, will mean that much of ASIO's activities will be cloaked in secrecy and cannot be subject to public discussion.
Given that ASIO is invariably involved in domestic anti-terrorism measures, these offences will have the knock-on effect of insulating the domestic "war on terror" from the public gaze. If these offences become law, one of the most significant policy issues in Australia will then be carved out from public debate.
Probably unconstitutional
Present High Court jurisprudence states that a legislative provision will be invalid if it burdens the freedom of political communication and it is not reasonably adapted to pursuing a legitimate objective.
The secrecy provisions, if passed, will clearly restrict freedom of political communication; a freedom which extends to communication regarding the exercise of power by ASIO.
The question then is whether those provisions which are aimed at preserving the integrity of ASIO's intelligence gathering are reasonably adapted to this aim.
It is likely that the first offence will be seen as reasonably adapted because it imposes a prohibition on disclosure for a relatively short period.
The "operational knowledge" offence, however, is of questionable constitutional validity. It is seriously arguable that it is not reasonably adapted to the aim of protecting the integrity of ASIO's intelligence-gathering activities because it criminalises disclosure of information for an inordinately long period, i.e. two years, and embraces a very broad range of information.
In other words, the disproportionality of the "operational knowledge" offence will likely make it constitutionally invalid.
[Joo-Cheong Tham is an associate law lecturer at La Trobe University and a member of the Civil Rights Network <http://www.civilrightsnetwork.org>. More information is also available at <http://www.getsmart.org.au>.]
From Green Left Weekly, December 3, 2003.
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