Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697632714241.pdf (Australia)
13 March 2018 Parliamentary Joint Committee on Intelligence and Security PO Box 6021 Parliament House CANBERRA ACT 2600 By email: pjcis@aph.gov.au Dear Committee Secretary, The Joint Media Organisations – whose logos appear above – appreciate the opportunity to make this second supplementary submission to the Parliamentary Joint Committee on Intelligence and Security regarding the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (the Bill).
We make this submission following the submission of the proposed parliamentary amendments by the Attorney-General on behalf of the Government (submission 40).

We appreciate the Attorney-General’s consideration of the issues raised by Australia’s media organisations and the resulting amendments that address a number of our concerns.

We are grateful for these amendments.


We hope that this submission and the recommendations contained herein are taken in the way that they are offered – to achieve legislation that is fit-for-purpose and minimises the chilling effect on public interest reporting.

Please note our reference to ‘the Bill’ in this submission is as if the original Bill is amended as proposed by the Government amendments contained in submission 40.
1 Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017Submission 9 - Supplementary Submission OVERARCHING CONCERN – THE BILL STILL CRIMINALISES JOURNALISTS FOR DOING THEIR JOBS Notwithstanding the amendments it remains the case that journalists and their support staff continue to risk jail time for simply doing their jobs.

This is why we believe that the way in which to deal with this appropriately is to provide an exemption for public interest reporting.
The right to free speech, a free media and access to information are fundamental to Australia’s modern democratic society, a society that prides itself on openness, responsibility and accountability.

However, unlike some comparable modern democracies, Australia has no laws enshrining these rights.

In the United States of America the right to freedom of communication and freedom of the press are enshrined in the First Amendment of the Constitution and enacted by state and federal laws.
In the United Kingdom, they are protected under section 12 of the Human Rights Act 1998.

Therefore we do not resile from our long-held recommendation for exemptions for public interest reporting in response to legislation that criminalises journalists for going about their jobs.

The lack of such a protection – and the ever-increasing offences that criminalise journalists for doing their jobs – stops the light being shone on issues that the Australian public has a right to know.
The requirement for the prosecution to ‘negative’ a defence in order for a successful prosecution is no comfort and of itself chills public interest reporting It has been explained that Commonwealth law requires the prosecution to ‘negative’ the defence for the defendant to be found guilty of the offence (due to the way that the Commonwealth Criminal Code and the Crimes Act work in practice).

It should not be surprising that this is not at all comforting.
So, in the case of a journalist and the offence provisions in the Bill, a journalist might fall foul of the offence and is charged.

At this point it would be fair to say the prosecution would be confident of a successful prosecution – otherwise they would not have taken the case.

The journalist mounts a defence – in court, up against the AFP or the Commonwealth DPP – and looking down the barrel of jail time, for doing their job.
Then the prosecution – the AFP or the Commonwealth DPP – mounts their case in reply.

It is unfathomable that the prosecution would not do all it can to negative the defence.
This is a useful illustration of why it is that criminalising journalists for doing their job chills public interest reporting – no one wants to be charged with an offence and have to defend themselves in court, with the risk of jail time, and facing a well-honed prosecution, and add to that a prosecution with every incentive to win, and no incentive to lose the case.

That’s not what journalists want to do when they get out of bed every morning.
The result can be nothing but detrimental to the Australian public’s right to know.

The rationale of a similar evidentiary burden applying for defences and exemptions is not a reason to only offer defences and not include exemptions We note that the letter accompanying the drafting amendments submitted to the PJCIS explains that there is no material difference in the evidential burden of proof between exemption and defence, and also exception, justification and excuse.
We continue to hold that a media exemption should be provided for public interest reporting.

It is far preferable for a journalist to have to establish a public interest reporting exemption than to be forced to defend themselves in court against a formal charge.
2 Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017Submission 9 - Supplementary Submission While the evidentiary burden may be the same for a defence and an exemption we continue to hold that to minimise the chilling effect on public interest reporting it would be significantly better to have an exemption rather than a defence.
ISSUES IN THE BILL THAT REQUIRE FURTHER CONSIDERATION & AMENDMENT Notwithstanding the above, there remain three (3) outstanding issues presented by the redrafting that require further consideration and amendment.

SECRECY 1.
SECRECY 1.

The definition of 'deal' with information and the terminology ‘deals with and/or holds information’ is unchanged and requires amendment To reiterate, we do not believe that journalists and editorial support staff (including, for example, the editorial chain, legal advisers, executive assistants) should be liable for the offence in the Bill.

That, as we have said above, would appropriately be addressed by providing an exemption for public interest reporting.
Despite that, and regarding the Bill, we again raise serious concerns that the definition of ‘deal’ as it relates to ‘dealing with information’ is unnecessarily broad.

‘Deal’ is defined at section 90.1(1) of the Criminal Code.
It says: A person deals with information or an article if the person does any of the following in relation to the information or article: (a) receives or obtains it; (b) collects it; (c) possesses it; (d) makes a record of it; (e) (f) (g) (h) (i) (j) copies it; alters it; conceals it; communicates it; publishes it; makes it available.
(2) In this Part, dealing with information or an article includes: (a) (b) dealing with all or part of the information or article; and dealing only with the substance, effect or description of the information or article.

Our concerns are these:   there has been no justification for the breadth of the scope of the definition; and this introduces serious criminal penalties for a range of passive activities – particularly (a) to (e) above (receives/obtains, collects, possesses, makes a record, copies).
This is particularly unreasonable in a situation where a journalist ‘deals with’ verbal information, such as via a simple conversation.
In such a case a person:   ‘receives’ or ‘obtains’ information if they are told it by another person or even if they overhear it in discussion; ‘collects it’ without actively seeking the information – its classification also remains most likely unstated and the journalist is not in a position to assess the nature or significance of the information or documents being provided until after an offence is potentially committed; 3 Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017Submission 9 - Supplementary Submission Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017Submission 9 - Supplementary Submission Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017Submission 9 - Supplementary Submission We note here Linda Mottram’s recent interview with the Attorney-General ABC Radio National PM program about the amendments and the Bill1.
A question was posed to the Attorney-General about the recent filing cabinet situation and the penalties that would apply under the Bill.
The Attorney- General responded by saying that he didn’t think you can make blanket assumptions about penalties, there are a range of defences and it would depend on the circumstances and on the contents of the document, so he couldn’t say if the person (the purchaser of the filing cabinet or the journalist) would definitely face this or that charge, and noted in closing that every case is different and it’s a very complicated and individualised situation.
We cannot emphasise enough that this is why an exemption for public interest reporting is the most appropriate outcome for Australia’s democracy when laws – intentionally or unintentionally – criminalise journalists (and associated support personnel).

Linda Mottram’s response illustrated the point: Which in itself has got to have a chilling effect, doesn't it?
Anybody who comes across documents is going to immediately say whoa, hang on a minute, it's complicated as the Minister said and there's possibly 10 years' jail at the end of this.

ESPIONAGE 3.

The offence of ‘supporting’ a foreign intelligence agency should not include news coverage in the ordinary course, and requires amendment As raised in our original submission to the Committee, we remain significantly concerned by sections 92.7 and 92.8 of the Bill – which are unchanged from the original Bill.
These provisions regard foreign interference involving foreign intelligence agencies – specifically regarding 'support'.

The Explanatory Memorandum states that ‘support’ in these sections is not defined but is to have its ordinary meaning, namely (according to the Oxford Dictionary) ‘to give help or encouragement or approval to’.

We are concerned that any communication – online, in print or by broadcast – that positively reports about a foreign intelligence agency would breach these sections.
We bring to the attention of the Committee a not dissimilar issue that the Wall Street Journal recently encountered, where a journalist wrote an article (attached) about all sides of conflict in a region, including interviewing and reporting the views of the PKK.

Because the reporter gave the PKK a voice at all, the article was regarded as terrorist propaganda.

This is the kind of subjective assessment that media organisations encounter each and every day.
Similarly, if a journalist reports on a foreign intelligence agency that journalist and the media company that employs them could – in all likelihood – breach the provision for upholding the ethics of the profession and reporting in the public interest.

This is because of the matter of subjectivity.

In Australia, news.com.au wrote a story exposing Islamic State’s use of popular online trading sites to target potential victims.
News.com.au was directed to remove the story after the Classification Board found that the story indirectly provided instruction on the doing of a terrorism act.

The story reported the instructions given to readers of an IS magazine.

The Australian Press Council found that the story did not breach the Council’s Standards of Practice.
1 Radio National PM, 5 March 2018 6 Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017Submission 9 - Supplementary Submission Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017Submission 9 - Supplementary Submission The ‘outsiders’ offence for ‘communicating’ continues to carry a significant penalty of 10 years imprisonment.
To reiterate, the risk of journalists facing jail time for public interest reporting has a chilling effect regardless of the timeframe.
Notwithstanding this we reiterate the ALRC report where it was recommended (Recommendations 7-4 and 7-5) that both secrecy and ‘subsequent disclosure’ offences both attract a maximum penalty of 7 years imprisonment, given ‘the level of culpability and potential harm encompassed by the subsequent disclosure offences is of a similar order to that reflected in the recommended general secrecy offence’.
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