TRANSCRIPT
The Independent National Security Legislation Monitor is undertaking a review of Australia's most serious secrecy laws.
The review considers how current secrecy laws are impacting whistleblowers and public interest journalism.
The current Monitor, Jake Blight, says the relationship between national security and transparency in Australia is at the heart of the review.
"The challenge is in enabling harmful disclosures to be prosecuted, but in a way that is proportionate and so that the law does not criminalise disclosures which are not harmful. Secrecy must always be balanced against the need for government to be accountable."
In a two-day public hearing, Mr Blight has heard statements from human rights groups, the Australian Security and Terrorism Organisation, Press Freedom advocates and the Australian Federal Police, among others.
The hearings focused on four secrecy offences introduced to the Criminal Code in 2018, which make it a crime to disclose a broad range of government information.
It's the first time these laws have come under in-depth independent review.
ASIO Director-General Mike Burgess told the hearing the laws were introduced to protect Australia's security interests.
"In my view, secrecy offences do not exist to prevent wrongdoing from being uncovered. They are there to prevent unauthorized disclosure of sensitive national security information outside of lawful channels to ensure that intelligence and security agencies can protect Australia and Australians."
But Mr Blight says many submissions to the review have expressed grave concerns with these laws.
"Some submitters, including Civil Liberties Australia, say that there is a growing culture of excessive secrecy in government. Some say the offences are largely fine, maybe with a little bit of tweaking. Many say they have significant concerns with the provisions."
Mr Blight says one of the offences that has attracted most criticism is the 'deemed harm' offence, which applies to officials who disclose information that is considered to be 'inherently harmful.'
Deemed harm covers anything to do with one of Australia's six national security agencies, as well as anything classified as secret and top secret.
It's a serious criminal offence that carries a 7-10 year sentence.
According to Mr Burgess, a continuing, high-risk environment makes these laws necessary.
"In the current threat environment, it is very much our judgment for those people who are going through a vetting process for the highest clearance in the land, which means they'll have access to the most damaging information if disclosed in a way that's not helpful, that our approach is required given the threat environment we face today."
But Mr Blight says while there is undoubtedly information that can be harmful to national security, the way 'harm' is framed is far too broad and unclear.
"It treats all information to do with national security agencies as inherently or always harmful, regardless of whether it's about their most secret clandestine operations or is a more benign administrative or historical matter."
He says this broad definition could lead to over- criminalisation.
In his statement at the hearings, journalist and press freedom advocate Peter Greste underlined the significant power the current laws give to government employees in deciding what is deemed 'secret' or 'top secret.'
"We do not accept that a public servant's decision to stamp a document secret or top secret is a good way to determine harm to the national interest. It is an overly broad and unaccountable way of deciding what should be hidden from public view. It requires us to take the public servant's word for it."
Senior Lawyer at the Human Rights Law Centre, Kieran Pender told SBS the current laws go too far, with damaging results.
“Prior government introduced reform that was draconian, overly broad and lacked the necessary proportionality safeguards and oversight. And what that means is these laws criminalize whistleblowing and criminalize public interest journalism and all Australians suffer as a result.”
Mr Pender says these laws are having a 'chilling effect' on whistleblowers and journalists, which is threatening government accountability.
"Whistleblowers are not exposing wrongdoing because they're worried about the impact that might have on them. We've seen in recent years, whistleblowers being prosecuted. We've seen journalists being raided. That means that wrongdoing stays hidden, it stays in the shadows, and we don't have accountability."
Vice President of Whistleblowers Australia, Brian Martin, says current whistleblower protections are inadequate.
"The main issue is that the laws don't work...There's not even a good example of when any whistleblower has been protected. And the second issue is that the government is prosecuting whistleblowers, David McBride and Richard Boyle at the moment, and that sends a strong message to anyone working in organizations like defence or the tax office. If you speak up, this is what might happen to you. "
According to Mr Pender, this silencing of whistleblowers is bolstering a long existing culture of secrecy in Australia.
“Australia has a problem with secrecy. We've had two decades of what's been described as hyper legislation in response to national security matters. Following 9/11, we've had over a hundred national security laws introduced, many of which have been shrouded in secrecy. So Australia really needs to get the balance right and wind back some of that oppressive secrecy.”
Mr Greste told the hearing if Australia is to fix its secrecy problem, it needs to start seeing transparency and national security less as opposites, and more as complimentary.
"It suggests that if we want more security, we must trade off a degree of media freedom and transparency. We submit that this fundamentally misunderstands the role that the media plays in our democracy. We recognize that there is a tension between those two institutions, but they are not in opposition. In fact, we believe that generally media scrutiny makes our government and its agencies work better."
The report and recommendations will be tabled in May for the Attorney General to consider.
After the completion of the hearings, Mr Blight told SBS while he can't confirm what will be in the recommendations, there are key issues he expects to include.
"My job's just to make recommendations and it's a little early to be talking about those, but ... it's likely to include some narrowing of the deemed harm offense and some clarity in where the offense applies and which defences apply and what the defences for journalists are."]]
Speaking to media earlier, he said finding that right balance is crucial for the functioning of the country's democracy.
"Now secrecy crimes have a role to play in protecting our national security, but in making laws to empower our police, security and intelligence agencies, it's important that we don't actually undermine the very democracy we're asking them to protect."
