The Attorney-General of Australia, The Hon Christian Porter MP, referred a general inquiry to the Parliamentary Joint Committee on Intelligence and Security (the PJCIS) on 4 July 2019. That inquiry was referred pursuant to subparagraph 29(1)(b)(ia) of the Intelligence Services Act 2001.
The reference was to inquire and report on the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. The specific terms of reference for the inquiry are outlined in the preliminary pages of this report, however the inquiry has evolved as the Committee has undertaken evidence-gathering and consideration of the issues involved.
Due to the interrelated nature of the issues that have been raised in evidence to the inquiry, and the potential impacts of events and government decisions and administrative responses since the referral and review outcomes, the scope of the report and the limitation of consideration of issues is expanded on briefly below.
Scope of this report and conduct of the inquiry
The inquiry was referred by the Attorney-General following the public execution of search warrants on the residence of a News Corporation journalist and the Australian Broadcasting Corporation’s (ABC) Ultimo headquarters in June of 2019.
These search warrants were executed as part of ongoing Australian Federal Police (AFP) investigations into unauthorised disclosures of classified material. These disclosures resulted in reporting in the Sunday Telegraph of classified information regarding proposals for legislative reform of the Australian Signals Directorate (ASD) mandate, and the reporting by the ABC of classified material regarding alleged misconduct and potential war crimes in Afghanistan by Australian Defence Force (ADF) personnel in the early 2000s, referred to as the ‘Afghan Files’.
These media items were based on the unauthorised disclosure of internal classified material between the Department of Defence and ASD and the Department of Home Affairs, as well as classified Department of Defence reports and records regarding ADF operations in Afghanistan.
Further information regarding the events leading up to the referral of this inquiry is outlined in Chapter 2, however the brief outline above provides context to the referral from the Attorney-General for this inquiry to investigate the impacts of law enforcement and intelligence agency powers on the ability of the media in Australia to inform the public.
The letter from the Attorney-General referring the inquiry, which was made available on the inquiry website, stated:
The Government is committed to ensuring our democracy strikes the right balance between a free press and keeping Australians safe - two fundamental tenets of our democracy.
As such, the Government will consider proposals that aim to ensure that balance. This includes carefully reviewing all materials and proposals that media organisations and interested bodies provide to the Government.
The evidence and proposals provided to the Committee have been wide-ranging and relate to decades of national security legislation.
The Chair of the Committee, Mr Andrew Hastie MP, announced the commencement of the inquiry by media release on 5 July 2019 and invited written submissions from the media, government agencies and other interested stakeholders.
The Committee received 61 submissions, with an additional 41 supplementary submissions (incorporating substantive supplementary submissions and answers to Questions on Notice). These submissions included classified submissions received from government, as well as a small number of confidential submissions from private submitters. A list of all submissions received by the Committee is included at Appendix A.
The Committee also received one exhibit at a public hearing for the purposes of the inquiry. Details of this exhibit received are included also at Appendix A.
The Committee held a public hearing in Sydney on 13 August 2019 and public hearings in Canberra on 14 August 2019 and on 19 and 20 September 2019. A list of hearings and witnesses who appeared before the Committee is included at Appendix B.
Copies of all public submissions and transcripts of public hearings are available on the Committee’s website.
The subject matter of this inquiry, as well as the initial timeline for its conduct, necessitated a large amount of information to be presented to the Committee in short initial timeframes, which placed a significant time and resource burden on submitters, witnesses, and the Committee itself. The Committee is conscious of the considerable effort made, and professionalism shown, by the many contributors to this inquiry and expresses its profound gratitude.
The Committee was also challenged in being able to come to a consensus position at the end of 2019, due to the receipt of detailed supplementary submissions from stakeholders, presenting further detail on earlier proposed positions, or outlining completely new proposals that had not been presented before. The receipt of the later of these submissions unfortunately coincided with the outbreak of the COVID-19 pandemic, which then reduced the Committee’s ability to fully engage with these new proposals in a meaningful way, within a reasonable timeframe, as outlined below.
The Committee’s desire was to conduct the majority of this inquiry in public and to that end did not receive any private briefings or conduct any private or classified hearings related only to this inquiry. The Committee would like to thank all witnesses for their willingness to engage with the Committee on this topic within the public domain. The Committee also acknowledges that some material was required to be provided in a classified format, but this was limited to classified operational and legal material, as necessitated by the relevant legislation or policy of the originating agency.
Extension of reporting timeline and COVID-19 impacts
As the inquiry progressed the Committee became increasingly cognisant of the fact that the originally requested reporting timeline from the Attorney-General of 17 October 2019 would not provide enough time to pursue the relevant lines of inquiry, or consider the considerable evidence it had received with the appropriate level of granularity.
Accordingly, the Chair of the Committee wrote to the Attorney-General on 20 August 2019 requesting an extended reporting deadline of 28 November 2019. This extension was agreed to by the Attorney-General.
As the Committee continued to consider the issues raised by submitters, it became apparent that a further extension of the reporting deadline was warranted. The Chair and Deputy Chair issued a joint media release on 21 November 2019 indicating that this report would be delivered by the end of 2019, but once detailed further submissions were received in late 2019 and a government submission was expected to be received in early 2020, the Committee issued a further release on 13 December 2019 outlining a 2020 reporting aim. This was then further impacted by the COVID-19 pandemic.
Subjects covered in this report
The Committee recognises that the subject matter of this inquiry, while limited somewhat by the terms of reference, is still significantly broad and some issues raised by submitters and witnesses may not be reflected in the evidence, commentary and recommendations of this report.
This omission is in no way a diminution of the importance of those issues, or a rejection of the issue raised. Rather, the Committee felt that it was necessary to focus on reaching bipartisan agreement on a set of achievable and concrete recommendations in the time available.
Additionally, a number of submitters made comprehensive recommendations to this inquiry for reforms that may not be discussed in detail (or, in some instances, at all). Those recommendations were nonetheless valuable to this inquiry and helped to inform the Committee’s deliberations.
This report consists of three chapters:
This chapter briefly describes the genesis and conduct of the inquiry, as well as the considerable amount of review and reporting that has been undertaken regarding the subject matter (or related issues) of this inquiry in recent years;
Chapter 2 briefly explores the background to the inquiry, as well as providing an overview of the current law enforcement and intelligence legislative frameworks that have been called into question, their associated impacts, and outlines some of the evidence provided to the Committee regarding the interaction between the media and law enforcement and intelligence agencies;
Chapter 3 delivers the Committee’s targeted summary of evidence and recommendations related to:
the opposing fundamental positions of the media and government on the way forward and the need for collaboration;
the law enforcement and intelligence powers in question, the warrants authorising investigation and public interest considerations;
offences and defences related to unauthorised disclosure of national security material;
the Public Interest Advocate Regime and potential enhancements to the scheme
current and potential Public Interest Disclosure mechanisms;
security classification of material;
protection of journalistic sources; and
Freedom of Information and defamation.
Related current or recent inquiries and reports
There have been a number of reviews and reports conducted, both contemporary to this inquiry, or in the recent past that have analysed many of the issues considered in this report.
Some of these inquiries and reviews are outlined briefly below.
Senate Environment and Communications References Committee’s inquiry into Press Freedom
On 23 July 2019 the Senate referred an inquiry into press freedom to the Environment and Communications References Committee. This inquiry is still ongoing and while encompassing some of the same issues as this inquiry, has much wider-ranging terms of reference:
disclosure and public reporting of sensitive and classified information, including the appropriate regime for warrants regarding journalists and media organisations and adequacy of existing legislation;
the whistleblower protection regime and protections for public sector employees;
the adequacy of referral practices of the Australian Government in relation to leaks of sensitive and classified information;
appropriate culture, practice and leadership for Government and senior public employees;
mechanisms to ensure that the AFP have sufficient independence to effectively and impartially carry out their investigatory and law enforcement responsibilities in relation to politically sensitive matters; and
The Senate inquiry was initially to report in December 2019, but has now extended reporting until at least 2021.
Richardson Review of the legal framework governing the National Intelligence Community
On 30 May 2018, the Attorney-General announced that a comprehensive review of the legal framework governing the National Intelligence Community (NIC) would be undertaken by Mr Dennis Richardson AO. The review was instigated as the implementation of a recommendation of the 2017 Independent Intelligence Review that recommended:
A comprehensive review of the Acts governing Australia's intelligence community be undertaken to ensure agencies operate under a legislative framework which is clear, coherent and contains consistent protections for Australians.
Mr Richardson provided a classified report to the government at the end of 2019, and provided an unclassified public version in mid-2020. The unclassified review report had not been released at the time of finalising this report.
While the review was looking at the overall operation of the national security legislative framework, elements of the terms of reference have potential impacts on the issues being considered by this inquiry. Most notably:
…improvements that could be made to ensure that the legislative framework for the NIC…provides for accountability and oversight that is transparent and as consistent across the NIC agencies as is practicably feasible.
legislation containing NIC agency investigative powers, such as the Surveillance Devices Act 2004 and Telecommunications (Interception and Access) Act 1979;
the adequacy of national security information handling provisions under the National Security Information Act 2004, including the protection of information relating to counter terrorism and foreign interference prosecutions;
oversight-related legislation, such as the Inspector-General of Intelligence and Security Act 1986 and Independent National Security Legislation Monitor Act 2010.
Both the Department of Home Affairs and the Attorney-General’s Department have identified that a number of issues raised by submitters are being considered as part of the Richardson Review, while not being directly referred to in its terms of reference.
As the outcome of the Richardson Review or the scope of its recommendations is unknown, the Committee is mindful that it is currently reviewing the impact of legislation that may very well be fundamentally altered as a result of any foundational legislative framework shifts that may result from the Richardson Review.
Where possible, this has been acknowledged at the relevant topic in this report.
Senate Select Committee on the Future of Public Interest Journalism
In May 2017 the Senate established a Select Committee on the Future of Public Interest Journalism. While this Committee was mainly established to inquire on the future of public interest journalism in an age of increasing data manipulation, social media, fake news, and cultural diversity, one of its terms of reference was analogous to this Committee’s inquiry, being:
…the current state of public interest journalism in Australia and around the world, including the role of government in ensuring a viable, independent and diverse service.
In its report, the Senate Committee identified concerns from submitters to that inquiry that national security legislation was restricting the freedom of the press in recent years and contributing to a chilling effect.
The concept of this perceived ‘chilling effect’ is covered in Chapter 2 of this report.
Australian Law Reform Commission’s report into Traditional Rights and Freedoms—Encroachments by Commonwealth Laws
In December 2015, the Australian Law Reform Commission (ALRC) delivered a report to the then Attorney-General entitled Traditional Rights and Freedoms—Encroachments by Commonwealth Laws - FINAL REPORT.
This report analysed the impacts of Commonwealth laws and argued that a number of counter-terrorism and national security laws interfere with traditional rights and freedoms, including freedom of speech, freedom of association and assembly and freedom of movement, and imposed strict or absolute liability offences and introduced changes to fair trial procedures.
The commentary in this report highlighted a number of the concerns that submitters have made to this inquiry, with the added linkages of impact on other basic rights for consideration when analysing media freedom.
Australian Law Reform Commission’s report into secrecy and open government
The 2010 ALRC report, Secrecy Laws and Open Government in Australia introduced a number of the issues considered in the later rights and freedoms report (secrecy laws interfering with the right to freedom of expression), however it principally analysed the construct for a framework of Commonwealth secrecy provisions that could both safeguard sensitive information and enable open government and accountability.
The ALRC proposed a framework for balancing national security and open and accountable government (often utilising the media):
The management of information can be conceived of as a spectrum, with openness of information and protection of information as opposite ends of that spectrum. Secrecy provisions are situated at different points in the spectrum—at times emphasising protection; at times facilitating information handling, sharing and disclosure.
Some of the recommendations put forward by the ALRC, such as reform of secrecy offences in the Crimes Act 1914 were realised, in part, with amendments made by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, and were discussed by the Bill Advisory Report from this Committee’s predecessor.
Elements of the ALRC’s proposed framework, including those related to the establishment of harm to public interest through a disclosure, have been criticised by stakeholders as not having gone far enough. This is discussed in Chapter 3.
Other reports not directly related to the inquiry’s terms of reference
Review of the Public Interest Disclosure Act 2013 (2016)
Mr Philip Moss AM undertook an independent statutory review of the operation of the Public Interest Disclosure Act 2013 (PID Act) two years after its commencement. Mr Moss presented his report to the Government in July 2016.
While the operation of the PID Act is not directly covered by the terms of reference of this inquiry, its intent to allow for a formal and legitimate mechanism for individuals to make disclosures regarding wrongdoing and maladministration in the Commonwealth is relevant to some circumstances regarding unauthorised disclosures that have been made to the media.
The Moss Review was critical of the PID Act and the experience of users, but cited that the relative newness of the scheme may have contributed to this criticism. The report proposed improvements to the scheme. There has been no formal response or direct legislative change created as a result of these recommendations.
The PID Act and disclosures are discussed in Chapter 3.
Parliamentary Joint Committee on Corporations and Financial Services report into Whistleblower Protections
The Parliamentary Joint Committee on Corporations and Financial Services conducted an inquiry into whistleblower protections during late 2016 and 2017 and reported in September 2017.
The inquiry looked at whistleblower protections in a wider context than is relevant to this inquiry, but the general concept of whistleblower motivations and protection for information released in the public interest has some crossover.
Committee comment regarding statutory reviews undertaken by this Committee
The Committee notes that it is currently undertaking, or has recently finalised, statutory reviews of both the amendments made to Commonwealth legislation by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, as required by section 187N of the TIA Act, and the mandatory data retention regime required by Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (TIA Act).
Both of these reviews concern powers, data access and investigatory authorisations that may extend to the conduct of a journalist or a media organisation, or their information.