Law Council says that national security laws should not unduly limit free press

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The Law Council of Australia has expressed concern that a broad scope of innocuous journalistic conduct may be caught under the country’s current espionage, sabotage, and foreign interference laws.

In a submission to the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) press freedoms inquiry, the Law Council said that disclosure of classified intelligence information by journalists and whistle-blowers should only be criminalised if it can be proven there is a real threat to national security.

Arthur Moses, president of the Law Council, said that Australia’s secrecy provisions had developed inconsistently in an environment of ever-increasing powers to intercept and access data. In a statement, he called for national security measures that are proportionate to any threat posed and that do not unduly impinge on freedom of expression, human rights, or rule-of-law principles.

“This is a balancing act and one we must get right,” said Moses. “Press freedom and freedom of expression are central to the Australian ethos and must be fiercely protected. While the Law Council recognises strong national security protections are essential for the safety of Australians, disclosure of classified information should only be criminalised if it can be proven to have posed real harm to national security. For this reason, the concept of ‘harm’ must be clearly defined, and it must be more than merely embarrassment and reputational damage to government. This would help protect against overuse and misuse of executive power.”

Moses said that the Law Council had consistently supported the development and amendment of secrecy provisions in line with the Australian Law Reform Commission’s (ALRC) Secrecy Laws and Open Government in Australia Report.

“We believe the inclusion of an express harm requirement in the Criminal Code, clarifying what constitutes an offence and clearly defines ‘public interest’ is vital,” he said. “The Criminal Code should also be amended to place onus on the prosecution to establish a disclosure made by a journalist was not in the public interest.”