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Concern over Australian bill that would penalise disclosing information about intelligence operations

MEAA has written to Attorney-General George Brandis as well as Shadow Attorney-General Mark Dreyfus, Greens Senator Scott Ludlum, Independent Senator Nick Xenophon and Clive Palmer MP about its concerns with the National Security Legislation Amendments Bill and the effect it will have on journalism.

The text of the letter follows.

Senator the Hon George Brandis QC
Attorney‐General
PO Box 6100
Parliament House
Canberra ACT 2600
[email protected]

18 July 2014

Dear Attorney‐General

Re: National Security Legislation amendments

The Media, Entertainment & Arts Alliance (MEAA) is the professional association and industry advocate for Australia's journalists. MEAA is concerned at the amendments contained in National Security Legislation Amendment Bill (No 1) 2014.

MEAA is concerned over the Bill's section 35P "Unauthorised disclosure of information" (appearing on page 69 of the Bill) that relates to penalties applied to a person disclosing information about a special intelligence operation. The penalties in the Bill are jail terms of between five and 10 years. The Explanatory Memorandum makes it clear that the offences outlined in section 35P would apply to "disclosures by any person" and "persons who are recipients of unauthorised disclosure of information, should they engage in any subsequent disclosure".
  
MEAA is concerned that this amendment would capture legitimate reporting of activities in the public interest. In doing so, it would criminalise journalists and journalism that performs a vital role in a healthy democracy of scrutinising government and its agencies. This legislation would have made the reporting of the phone‐tapping of the wife of Indonesian President Susilo Bambang Yudhoyono illegal.

MEAA notes that the second reading speech for the Bill says: "As recent, high‐profile international events demonstrate, in the wrong hands, classified or sensitive information is capable of global dissemination at the click of a button. Unauthorised disclosures on the scale now possible in the online environment can have devastating consequences for a country's international relationships and intelligence capabilities."

What the speech fails to acknowledge is that the Snowden and WikiLeaks revelations presumably alluded to in the second reading speech, also revealed widespread illegal activity by intelligence agencies and other arms of government. The revelations exposed thousands of breaches of privacy rules and misuse of information. The public became aware of widespread metadata capture, usage and sharing by the government agencies of several nations.
  
In both these examples, legitimate journalism played a crucial role in making the public aware of what governments have been doing in the name of the people. It would be difficult to dispute that the public interest has been well served by these disclosures and that people have felt, rightly, that governments and their agencies should be subject to increased reform, scrutiny and monitoring of their activities.  As MEAA has written several times in our annual State of Press Freedom report, we are concerned at the imbalance in the penalties written into recent "anti‐terror" legislation. The second reading speech states: "In addition, the Bill introduces new maximum penalties of 10 years' imprisonment for existing offences involving unauthorised communication of intelligence‐related information, which at two years' imprisonment are disproportionately low. The higher maximum penalties better reflect the gravity of such wrongdoing by persons to whom this information is
entrusted."

MEAA believes that these penalties could be used to intimidate, harass and silence the legitimate journalistic scrutiny and reporting on the activities of governments and their agencies. As we have noted in our press freedom reports before, there is a serious disconnect between penalties in some areas of anti‐terror legislation and the penalties handed down to journalists. For example, the Anti‐Terrorism Act stipulates that an ASIO official who knowingly contravenes a condition or restriction of a warrant faces a two‐year jail term. But if a journalist publishes information on this abuse of power by the ASIO official, the journalist risks a five‐year jail term – more than double the penalty imposed on the person who commits the original offence.

MEAA urges the Australian Parliament to carefully consider the implications for press freedom in National Security Legislation Amendment Bill (No 1) 2014 - the implications not just for whistleblowers seeking to shed light on wrongdoing but also for journalists whose work could be criminalised by these proposed amendments.
  
MEAA would welcome the opportunity to discuss this further with you.

Yours sincerely,  

Christopher Warren
Federal Secretary
Media, Entertainment & Arts Alliance

The MEAA has responded with the attached submission to the Parliamentary inquiry into the Bill.
australia_national_security_meaa_submission.pdf (485 KB)

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