ABC Capital Hill, 30 September 2014

Subject: National Security

LYNDAL CURTIS: Mark Dreyfus joins me now in the studio. Mark Dreyfus, welcome to Capital Hill.

 

MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thanks for having me, Lyndal.

 

CURTIS: What, if anything has eased your concerns that journalists reporting on intelligence operations would not be criminalised under this legislation?

 

DREYFUS: We raised concerns about this section, 35P, when the bill was first introduced in Parliament back in July.

 

And through the processes of the Intelligence Committee, there were recommendations made for it to be made absolutely clear that a journalist can't be charged for inadvertent reporting of special intelligence operations.

 

And also that the Commonwealth Director of Public Prosecutions will have to take into account the public interest in deciding whether or not to lay a charge.

 

We think that the balance has been struck in the right place so we did vote for the bill.

 

CURTIS: The Attorney-General, George Brandis, says it is, there could be a penalty if a journalist recklessly discloses an operation. Who decides whether it's reckless?

 

DREYFUS: A court. And it would be necessary for a journalist reporting on matters arising from a special intelligence operation to either know that it is a special intelligence operation, or be reckless about it.

 

And bear in mind what this provision is there for - it's to protect the secrecy of a very small number, it's expected to be a very small number of ASIO operations each year where you’ve got one or two ASIO officers in an undercover operation pretending to be part of some espionage operation of a foreign country or perhaps pretending to be part of a terrorist group.

 

They’re in a position of intense danger. We think it's important that the secrecy of that kind of operation be preserved.

 

CURTIS: They are what’s dubbed Special Intelligence Operations.

 

DREYFUS: Yes, that's right.

 

CURTIS: At what point are they deemed to be special - do they have to be deemed to be special beforehand?

 

DREYFUS: In advance. No retrospectivity here, it won’t be possible to go back into the past and say that part of ASIO's work ten years ago, that's when they are going to say it's a Special Intelligence Operation.

 

It's very much prospective. It does confer a very limited criminal immunity from criminal prosecution on the ASIO officers concerned.

 

The independent national security legislation monitor recommended that there be this kind of regime of special intelligence operations.

 

It's like something that the Australian Federal Police have had for many years now.

 

CURTIS: In fact, the Attorney said that hadn't been used. If a provision in law hasn't been used does it actually really need to be there?

 

DREYFUS: We think that it's important that the facility be there for the - it was to have been before the bill was amended, the Director-General of ASIO could have authorised this. We said no, that's not sufficient oversight, and the bill has now been amended to say it's the Attorney-General that has to authorise this kind of special intelligence operation. But we think it's a worthwhile provision.

 

CURTIS: There are journalists, a few, who have a background, previous history with intelligence agencies, have worked for them. Could they perhaps face a higher burden, that their knowledge of the way intelligence operations work could in some way infer that they should know about these things, that they can't just stumble upon them?

 

DREYFUS: The criminal law focuses on individuals, Lyndal - and so it should. It's looking at the state of mind of the particular individual, and if someone's had a long background in intelligence matters, it probably does raise the bar a little bit for that journalist, because they are going to know more.

 

But what I know is that the Australian media will act responsibly. They always have in this area of national security and I’d be expecting any journalist that is thinking about reporting in this area to check with the security agencies.

 

CURTIS: Are you absolutely sure if an intelligence operation was seriously bungled, if it could do damage to the country and cause embarrassment to the agency, that that could be reported without a journalist facing a criminal sanction?

 

DREYFUS: I can't be absolutely certain, but what I can be certain of is that Labor is going to be monitoring how these provisions work in practice, and I'd stress again, we are talking about quite a small number of operations that are ever likely to be special intelligence operations.

 

These secrecy provisions attach only to them, they are not right across the board. They are not secrecy provisions about the whole of ASIO's work.

 

CURTIS: First, what's called the first tranche of the national security laws is about to go before the House of Representatives. Are you happy to wave them through and depending on the report about the second tranche, happy to expedite a passage of that before the end of the year?

 

DREYFUS: I don't like the expression ‘wave through’ much, Lyndal. This first bill, the national security legislation amendment bill, is the product of two years of consultation and parliamentary scrutiny - two parliamentary committee inquiries. It started under Labor in May 2012. So the idea right at the end of the process that we are waving through I don't think is quite right.

 

We will be supporting the bill in the form in which it has been amended by the Government.

 

CURTIS: Mark Dreyfus, thank you very much for your time.

 

DREYFUS: Thanks, Lyndal.