Security laws bring us closer to the day when journalists will be jailed for reporting
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Security laws bring us closer to the day when journalists will be jailed for reporting

Sooner or later an Australian journalist will be prosecuted and perhaps jailed for receiving leaked government information.

No doubt Attorney-General George Brandis would say this is another example of "outrageous hyperbole" from the media, but that's the likelihood that arises from the combination of his metadata legislation with Australia's antiquated official secrets laws, now more than a century old.

Few journalists have ever heard of sections 70 and 79 of the Crimes Act 1914.

Modelled on Britain's draconian Official Secrets Act of 1911, the secrecy provisions of Australia's Crimes Act were drafted by Labor attorney-general Billy Hughes and his solicitor-general Robert Garran shortly after the outbreak of the First World War.

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Attorney-General senator George Brandis is questioned by journalists.

Attorney-General senator George Brandis is questioned by journalists.

Photo: Alex Ellinghausen

Wild rumours of German espionage were circulating as the First Australian Imperial Force prepared to embark for Egypt and Hughes apologised to the parliament for delay in introducing official secrets legislation when strong measures were apparently needed to keep Australia free from foreign spies.

"It is especially necessary at the present juncture," Hughes told parliament on October 21, 1914, "because, right throughout the British dominions, the law in regard to espionage may be designated as shamefully lax." The then Liberal opposition thought Hughes didn't go far enough.

The German spy scare proved quite unfounded, but the resultant official secrecy legislation has remained substantially unchanged ever since, remarkably surviving successive governments and numerous legal reviews.

Section 70 of the Crimes Act makes it an offence for a Commonwealth official to disclose any government information without proper authorisation.

This is the basic law that makes it a crime to leak any government information – from the highest cabinet secrets or the the number of paperclips used in a local Centrelink office.

There is no public interest defence and any unauthorised disclosure of information carries a potential penalty of up to two years imprisonment.

Section 79 makes it an crime for officials to retain, disclose or communicate a government document (or any sketch, plan, photograph, model, cipher or note) without authorisation; again with a penalty of two years imprisonment and up to seven years if the offence is carried out with "intention of prejudicing the security or defence of the Commonwealth or a part of the Queen's dominion".

Even less well known are sub-sections 79 (5) and (6) which make it a crime to receive a leaked document if the recipient knew or was reckless to the fact that the disclosure was made without authorisation. The recipient potentially faces two years imprisonment, and again seven years if they knew the disclosure was intended to be prejudicial to Australia's security or defence.

Again there is no public interest defence and no exemption for journalists engaged in their profession.

Long before recent debate about the criminalisation of reporting on so-called "special intelligence operations" conducted by the Australian Security Intelligence Organisation, it's been a criminal offence for journalists to knowingly receive unauthorised disclosures, that is "leaks", of government information.

That's been the law since 1914.

Of course, prosecutions of leakers have been rare, and as far as I'm aware no journalist has ever been prosecuted under Section 79 of the Crimes Act for receiving an unauthorised disclosure of a government document.

But that hasn't been for lack of trying.

Most Australian Federal Police leak investigations not only try to identify the leaker, but also target people who have received unauthorised disclosures of documents, including journalists who have written articles revealing government secrets.

I'm more aware of this than most after having the AFP twice knock on the door of my home to execute search warrants in the course of leak investigations, once in 2000 and again in 2008. In both cases the warrants specified not only offences relating to the unauthorised disclosure of information, but also the offence of receiving a document disclosed without authorisation. I was as much the target as any alleged source of the leaks.

A major problem for the police and prosecutors in dealing with alleged offences under sub-sections 79 (5) and (6) has been to prove the mental element of the offence – that is the journalist knew the leak was really a leak, and not one of the many clandestine but authorised disclosures of government information that take place every week. Provided a journalist exercised their right of silence the prospects of successful prosecution were slim.

This has now changed in the highly connected, electronic age we now live in.

After all there are no fingerprints like electronic fingerprints and the AFP have long been accessing telecommunications metadata in their efforts to investigate leaks of government information.

Metadata access has indeed been an investigatory tool for more than 20 years.

The first steps in any government leak investigation are to establish who had access to the information in question (an increasingly easy task thanks to electronic audit trails), when those persons had access, and to examine the telecommunications metadata of those persons and any journalists or media organisations involved in an effort to identify any links or contacts.

These investigations can be tightly focussed or massive trawling exercises. One major leak inquiry some 15 years ago accessed the telephone call records of nearly 14,000 telephone services totalling more than 77,000 phone calls. Most of these numbers were the phones of government officials who potentially had access to leaked documents. However, that fishing expedition also included the telecommunications records of more than 130 private individuals including journalists, members of parliament and political staffers and included data on internet usage and mobile phone locations.

The prospective passage of the Coalition government's metadata retention legislation will ensure that the AFP and ASIO will be able to look back, at least, over two years of telecommunications and internet data, at a spider's web of connections, associations or for that matter a suspect's "pattern of life", long before any alleged leak actually took place. They will also be able to gather further data as people react to a disclosure.

A requirement that police obtain a warrant before they seek a journalist's metadata to identify sources is a minor procedure that won't be a significant hurdle for investigators given the track record of approvals for telecommunications interception warrants.

According to the most recent annual report from the Attorney-General's Department, federal judges and Administrative Appeals Tribunal members approved 99.6 per cent of 4247 interception warrant applications made in 2012-13. Only 15 warrant applications were rejected or withdrawn.

This is a rubber stamp mechanism. There are few areas of public administration that can claim a 99.6 per cent success rate. It is also of note that 78.7 per cent of warrants were issued not by federal judges but by Administrative Appeals Tribunal members who ultimately lack independence from the executive government.

Interestingly, the Labor opposition has not sought or insisted on a warrant regime for access to the metadata of members of Parliament, their offices and their staff. This is probably a indication that they recognise that for what it is – nothing more than a procedural fig leaf.

Warrants or no warrants, the AFP (and state and territory police in their own jurisdictions) will continue to target journalists' metadata in the course of government leak investigations.

When national security issues are involved the AFP and ASIO may also resort to telecommunications interception.

Journalists' sources who reveal government information and documents (as distinct from political gossip) will be at risk unless they very cautious and studiously avoid any electronic communication with media organisations, directly or indirectly, and indeed any activity online that might give rise to suspicion.

Moreover metadata will be used to construct at the very least circumstantial cases that may see not only sources prosecuted, but also journalists charged as well for receiving unauthorised disclosures of documents.

Metadata can not only link a source to a journalist, it can also reveal much about the journalist's handling of contact with that source and their knowledge about the nature of any disclosure, including for example evidence of security precautions and clandestine contact.

Metadata can also be used to build the case for the police to obtain and execute search warrants on premises in further efforts to identify a confidential source as well as determine the journalist's knowledge as to whether any disclosure of a document was indeed unauthorised.

A journalist might be scrupulous about not recording anything that might identify a source, but an exchange of emails with an editor about the importance of maintaining confidentiality would still be of great interest to investigators and prosecutors.

In any case, human frailty being what it is, journalists and sources can make mistakes and in an electronic age those mistakes are likely to be recorded one way or another.

Undoubtedly any prosecution of a journalist as a recipient of a leaked document would be politically fraught. It may be some time before it happens, but that day will probably come and when it does the chilling effects on a free media will be significant.

However, just as was case in 1914, bipartisan support for national security and official secrecy usually trumps freedom of the press.

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Philip Dorling is a senior Fairfax writer. In 2010 he secured exclusive access via WikiLeaks to thousands of United States diplomatic cables leaked by US Army private Chelsea Manning. He has also written extensively on former intelligence contractor Edward Snowden's disclosures of US and allied cyber espionage activities.

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