What Brandis won’t tell us about S35P
The chief law officer of Australia is engaging in serial deception about one of his new national security laws, and we can only speculate why, writes Michael Bradley.
The now infamous section 35P of the ASIO Act, brought in with the tide of exciting new national security laws, is particularly remarkable for the disjunct between the depth of its impact and the blithe insouciance of our political leaders in discussing it.
On Q&A two weeks ago, the Government’s Kelly O’Dwyer and the Opposition’s Kate Ellis managed to demonstrate their almost complete ignorance of how the section works and the defences available under it, and you can bet they’re among the more informed members of Parliament on this subject.
So you’d think that, at least, the architect and promoter of this law, Attorney-General George Brandis, would know it inside out. Let’s ignore his repeated protestations that the law does not target journalists and that it is “almost inconceivable” that a journalist could be prosecuted under s35P for disclosing information about a special intelligence operation.
That’s self-evidently untrue; this law is directly targeted at the freedom of the press to report on government operations. And we’ll also ignore the late decision to require that any prosecution under s35P will require the AG’s consent. So what? That doesn’t change the law and it gives journalists and publishers no comfort in deciding whether or not to run a story.
No, what is most worrying is that Brandis himself appears not to understand the actual wording and legal effect of the law he just gave us. This is what he said on Q&A on Monday night, directly in relation to whether s35P would catch a journalist reporting on something disclosed by a whistleblower like Edward Snowden:
If it’s a journalist covering what a whistleblower has disclosed, then the journalist wouldn’t fall within the reach of the section, because the relevant conduct is the conduct constituting the disclosure. So if the event is already disclosed by someone else and a journalist merely reports that which has already been disclosed, as it was by Snowden, then the provision would not be attracted.
Wrong, wrong, wrong. Section 35P outlaws any disclosure of information relating to a special intelligence operation, and the only additional element required to constitute the offence is that the person making the disclosure is reckless as to the secrecy of the information.
It is not a defence to say that the information has already been disclosed by someone else; in fact, there is not even a “public domain” defence.
It doesn’t matter how many times the information has already been disclosed; indeed, Brandis could have read it out in Parliament, and it’d still be a crime to publish any of it again.
This may seem a minor point, but it isn’t. Partly, it underlines again the horrific over-reach of this provision, which places a blanket ban on any reporting about a special intelligence operation, forever, and includes no public interest defence. More appallingly, it demonstrates that the Attorney General, as chief law officer of Australia, is engaging in serial deception about the new law, and we can only speculate why.
Michael Bradley is the managing partner of Marque Lawyers, a boutique Sydney law firm. View his full profilehere.