Australia’s Crackdown on Classified Disclosures

Eve Gamet

Amidst the turbulence that is Australian politics, and with the international community’s growing interest in media-related legislation, it would seem odd that harsh and restrictive legislation could be passed without too much by way of uproar. However, under the recently ousted Prime Minister, Malcolm Turnbull, the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 came into effect in June of this year.[1] The implications are far-reaching and arguably damaging to Australian journalism and the Australian media’s ability to act as watchdog.

Governmental whistleblowing is not a new phenomenon. Modern examples of whistleblowing have led to significant government embarrassment and the disclosure of human rights abuses. Important examples include Edward Snowden’s release of details regarding the NSA’s surveillance program and the “Deep Throat” informant who led to the revelation of Nixon’s Watergate break-in. The impact of governmental whistleblowing has been to inform the public about their government’s covert dealings, entailing public outcry and a call to change. However, the dissemination of classified information has unsurprisingly been met by many nations with an increase in legislation.

The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018

The Australian government introduced the National Security Legislation Amendment (Espionage and Foreign Interference) Act in a bid to crack down on governmental and security service whistleblowers, and journalists disseminating classified information. The government stated that “modern espionage” is a threat to “many Western democracies”, and that Australia is in need of legislation to counter it.[2] The Act encompasses anyone who has received, possesses or communicates classified information, regardless of whether this information is true or false.

The Act broadened definitions and inserted new sections into a number of existing Australian statutes. The Act made significant additions to the Criminal Code Act 1995, including the introduction of “new sabotage offences relating to conduct causing damage to a broad range of critical infrastructure that could prejudice Australia’s national security” and introducing new “offences relating to treason and other threats to national security”.[3] It also broadened the type of information capable of falling within the Act’s scope, by expanding the phrase “fact or document subject to a pre-existing duty of confidence”, to “information of any kind, whether true or false and whether in material form or not”.[4] This now means that a journalist with such information may not even have a physical copy and may not have published the material, but could be charged regardless.

The Act also replaced existing offences and introduced “new offences relating to secrecy of information” into the Australian Crimes Act 1914.[5]  The Act applies tough penalties to “commonwealth officers who leak classified information”.[6]

The Bill in its original form was heavily criticised by the public, for its ability to sweep “whistleblowers, aid workers, journalists and other not-for-profit workers into its net through its wide-sweeping definitions”.[7] The government argues that the Act in its final form, which passed through the Australian law-making processes within five months, accounts for many of the media’s concerns. However, worries persist.

In March 2018, the Australian Attorney General, Christian Porter, introduced a further amendment providing journalists with the defence of “pubic interest”.[8] If a journalist published the information under the premise that they reasonably believed that the information was in the public interest, they would have a valid defence. However, this has been criticised, as there is still uncertainty surrounding a circumstance in which the disclosure would both be in the public interest, but could also harm Australia’s interests. Other critics have noted that the defence is not an exemption, and “does not protect… from prosecution in the first place”. [9] There remains a level of discretion and uncertainty that continues to persist under the Act.

Reactions

Importantly, the United Nations expressed significant disapproval of the legislation, stating that it was unjustifiably and arbitrarily restricting the freedom of expression. The UN argued that the Amendment was inconsistent with Australia’s international obligations, conflicting with the International Covenant on Civil and Political Rights.[10] The UN argued that this would likely expose whistle blowers, journalists, activists and potentially even academics to criminal liability.[11] It was also argued that it suspends political accountability by stifling the source of public information about their government, through the imposition of “draconian criminal penalties on expression and access to information that is central to public debate and accountability”.[12]

Amnesty International agreed with the UN, and stated that the Act has the potential to shield Australian government officials from accountability.[13] If the media are unable to report on leaked information or questionable governmental acts, the public will remain uninformed. The process of criminalising journalism would likely result in an uninformed public, thereby  suspending real democracy. Claire O’Rourke from Amnesty International stated that the Act would also make “it a crime to hold the Australian government to account on human rights”.[14] As these abuses could be prevented from reaching the public ear, accountability or redress.

New Zealand

In New Zealand we have a number of Acts in place to both protect confidential information and freedom of speech.

Protected Disclosures Act 2000

Source: https://www.nytimes.com/2018/08/29/world/australia/chelsea-manning-visa-ban.html

The Protected Disclosures Act 2000 aims to promote and protect public interest.[15] The Act allows for disclosures of wrongdoing, and provides protection for the employee.[16]  However, the disclosures must be done through proper internal agencies. The Act will not provide protection to whistleblowers disclosing information to the media. The Act also includes special procedures for intelligence and security officials disclosing confidential matters: information must only be disclosed to “the Inspector-General of Intelligence and Security”. Thus does not therefore protect whistleblowing to the media.[17]

The Intelligence and Security Act 2017

The Intelligence and Security Act 2017 expressly provides for the imposition of a fine not exceeding $10,000 if a person discloses information obtained from an “authorised activity”.[18] The Act also applies a fine not exceeding $10,000 for the “unlawful disclosure of acquired information”.[19] Section 227 restricts the publication and broadcasting of information regarding employees.[20] This section imposes a fine not exceeding $5,000 for the publication of details that a person is “an employee of an intelligence and security agency” or “is connected in any way with an employee of an intelligence and security agency”.[21]

The Crimes Act 1961

The Crimes Act includes offences pertaining to the communication or retention of classified documents. For the crime of wrongful communication, retention or copying of classified information, a person is liable for a term of imprisonment not exceeding five years.[22] A person convicted under this section must have “knowingly or recklessly” communicated, retained or copied classified documents.[23] This sections applies to a person “who holds, or has held, a government-sponsored national security clearance” or to “a person to whom classified information has been disclosed in confidence”.[24] Thus there is little statutory protection for governmental whistleblowers.

A person is also liable for a term of imprisonment not exceeding three years who communicates official information “knowing that such communication or delivery is likely to prejudice the security or defence of New Zealand”.[25]

New Zealand Bill of Rights Act 1990

Our Bill of Rights Act includes a number of important provisions protecting the right of disclosures. Section 14 covers the freedom of expression, in which every person holds this right, “including the freedom to seek, receive, and impart information and opinions of any kind in any form”.[26] However, as is frequently observed, the Bill of Rights is legislation like any other, subject to the government of the day and capable of being overridden. The Act itself sets out that other enactments are not to be affected “by reason only that the provision is inconsistent with any provision of this Bill of Rights”.[27]=Our International Obligations

New Zealand signed and ratified the International Covenant on Civil and Political Rights in 1976, and thus shares with Australia the obligation to uphold freedom of expression.[28]

It appears from our array of legislation concerning whistleblowing and journalism, that those reporting and disclosing confidential information remain largely unprotected. New Zealand has yet to experience a large scale disclosure as had occurred overseas, for a number of reasons. However, the case of the EQC blogger in 2013 drew significant criticism from media and publishing outlets. The Earthquake Commission are responsible for the handling of insurance claims for the damage that occurred due to the South Island’s earthquakes. In March of 2013, an employee of the EQC accidentally emailed the details of 83,000 property claims which had accrued after the earthquakes in Canterbury. In April 2013, the blog owner of eqctruths.wordpress.com posted that they had also received the information and would make the claims public. The EQC then applied for an injunction preventing the disclosure of the email contents. A temporary injunction was granted on 8 April 2013, with a further injunction hearing held on the following day. The basis of the claim “was breach of confidence or misuse of confidential information, although the Court noted that there could also be issues under the Privacy Act 1993”.[29] The Court allowed the injunction to prevent the blogger from publishing the information gained from the EQC, however most controversially the court ordered that the person who disclosed the confidential contents to the blogger, the EQC blogger and “any other subsequent recipients” to provide in affidavits whether they had in their “possession any information obtained directly or indirectly from EQC about identifiable individuals other than” themselves, and “if so, whether and to whom he/she had provided that information”.[30] Thus the blogger was compelled to reveal their source.

It has been argued that forcing a publisher to provide their source is to go against a key tenet of journalism and source secrecy. Compelling the blogger to disclose their source “might be taking matters too far” and going against “the privilege against self-incrimination”.[31]

Australia’s legislation has been criticised as imposing draconian measures on whistleblowers and journalists dealing with confidential information. While New Zealand’s only notable case relating to such a statute was in 2013, the court’s order to disclose sources was arguably a major move. It is an interesting and uncertain area of the law that may likely see significant changes, much like has occurred across the Tasman.

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Featured image source: https://medium.com/athenslivegr/the-short-story-of-a-whistleblower-asking-for-protection-in-greece-bc9d18f8d187

[1] National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth).

[2] James Elton-Pym “Sweeping Changes to Espionage, Treason and Secrecy Laws as Foreign Interference Bills Pass” (28 June 2018) SBS News < https://www.sbs.com.au/news/sweeping-changes-to-espionage-treason-and-secrecy-laws-as-foreign-interference-bills-pass>.

[3] Parliament of Australia “National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2019 Summary” < https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6022>.

[4] Paul Murphy “Espionage and Foreign Influence Bills” (1 May 2018) Press Freedom < https://pressfreedom.org.au/espionage-and-foreign-influence-bills-5943e87e8228>.

[5] Parliament, above n 3.

[6] Elton-Pym, above n 2.

[7] Gareth Hutchens “Sweeping foreign interference and spying laws pass Senate” (28 June 2018) The Guardian < https://www.theguardian.com/australia-news/2018/jun/29/sweeping-foreign-interference-and-spying-laws-pass-senate>.

[8] The Hon Christian Porter MP “Amendments to Espioange and Foreign Interference Bill” (press release, 6 March 2018).

[9] Elton-Pym, above n 2.

[10] Murphy, above n 4.

[11] Murphy, above n 4.

[12] Murphy, above n 4.

[13] Elton-Pym, above n 2.

[14] Elton-Pym, above n 2.

[15] Protected Disclosures Act 2000.

[16] Section 5.

[17] Section 12(2)(b).

[18] Intelligence and Security Act 2017, s 108(2).

[19] Section 109.

[20] Section 227.

[21] Section 227(1).

[22] Crimes Act 1961 s 78AA.

[23] Section 78AA(1).

[24] Section 78AA(2).

[25] Section 78A.

[26] New Zealand Bill of Rights Act 1990, s 14.

[27] Section 4.

[28] Ministry of Justice “Constitutional Issues and Human Rights” (11 May 2018) < https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/human-rights/international-human-rights/international-covenant-on-civil-and-political-rights/>.

[29] Kevin Glover “Bloggers beware – the EQC injunction explained” (19 April 2013) Auckland District Law Society < https://www.adls.org.nz/for-the-profession/news-and-opinion/2013/4/19/bloggers-beware-–-the-eqc-injunction-explained/>.

[30] Above n 21.

[31] Above n 21.