Freedom Commissioner Tim Wilson opposes new national security laws that could jail journalists — Sydney Morning Herald, 28th September, 2014

MEAA says national security law an outrageous attack on press freedom in Australia — Media, Entertainment and Arts Alliance, 26th September, 2014

Hello I'm Paul Barry, welcome to Media Watch.

And tonight we bring you a special program on Australia's new anti-terror law, which passed through parliament last week.

Under the National Security Amendment Bill (No 1) 2014 journalists can now be jailed for up to 5 years for disclosing information on covert intelligence operations, and up to 10 years if that disclosure endangers lives.

According to the journalists' union, the MEAA , this:

"... overturns the public's right to know. It persecutes and prosecutes whistleblowers and journalists who are dealing with whistleblowers. It imposes ludicrous penalties of up to 10 years jail on journalists. It imposes outrageous surveillance on journalists and the computer networks of their media employers ..." — Media, Entertainment and Arts Alliance, 26th September, 2014

But according to Attorney-General George Brandis it is a law we need for our safety.

And it is not intended to be an attack on press freedom.

GEORGE BRANDIS: This is not a law about journalism, it's not a law about journalists, it's a law of general application about the disclosure of something which ought not, for obvious reasons, to be disclosed. — ABC News 24, 1st October, 2014

The new national security law-which was supported by all parties except the Greens***-has been in the planning for the last two years, and is not a reaction to ISIS or the latest terror raids.

***Please Note: Liberal Democrat Senator David Leyonhjelm also voted against the law

Indeed its aim, according to Griffith University's Professor of Journalism Mark Pearson is much broader.

The provision is clearly aimed at preventing Wikileaks or Snowden-style leaks of recent years and their broad publication in the world's media and across social media ... — JournLaw.com, 20th July, 2014

So what will now be prohibited?

Well, it was already a jailable offence to name an ASIO officer. The new law increases the maximum penalty from 1 to 10 years.

But the key provision is section 35P, which bans disclosure of any information that relates to a SPECIAL Intelligence Operation

This ban applies to any person

So journalists, whistleblowers, bloggers and even tweeters could all end up behind bars.

But ... what are special intelligence operations or SIOs?

Well, it seems they're rare undercover ops that need to be approved by the Attorney-General

GEORGE BRANDIS: They are unusual operations. They require unusually the fiat of the Attorney-General. That is one of the safeguards that has been built into the special intelligence operations regime. The idea that these could simply be rubber stamped to cover up, to cover up, or gloss over anything that ASIO might choose to do is nonsense. — ABC News 24, 1st October, 2014

But clearly some things will be covered up.

And the media won't be able to tell the public about these special ops ever, even years after and even if they go wrong.

So let's look at what might be off limits.

And let's start with last year's revelation that Australia's security services eavesdropped on the Indonesian president and his wife:

JUANITA PHILLIPS: It's been revealed that Australian spying in Indonesia went all the way to President Susilo Bambang Yudhoyono. The ABC and the Guardian Australia have obtained top-secret documents showing spies monitored the President's mobile phone as well as phones belonging to his wife and senior ministers ... — ABC, News, 18th November, 2013

That report last November led to a huge row which saw Andrew Bolt and Alan Jones accuse the ABC and Guardian of treason.

The Prime Minister initially said the ABC was guilty of poor judgement but he was later much blunter with 2GB's Ray Hadley:

TONY ABBOTT: A lot of people feel at the moment that the ABC instinctively takes everyone's side but Australia's. — 2GB, Mornings with Ray Hadley, 29th January, 2014

The PM went on to accuse the ABC of broadcasting the allegations of a traitor ... Edward Snowden.

SO ... would the ABC reporter on the story, Michael Brissenden, have been risking jail had the new laws been in place?

Well we don't know because when Brissenden asked the AG last week, Mr Brandis refused to tell him:

GEORGE BRANDIS: I'm not going to comment on an individual case or how hypothetically legislation might apply to a set of circumstances which have been the subject of a degree of conjecture. — ABC News 24, 1st October, 2014

What we can say is that if Brissenden and the Guardian Australia's reporter, Lenore Taylor had been charged it's likely they would have been convicted.

Because, according to Professor George Williams, a leading expert on Australia's terror laws:

If you reveal it, you're guilty. If it goes to court the question is whether a journalist revealed information, not whether they're justified in revealing that information. — Professor George Williams, Director of Public Law, University of NSW, Statement to Media Watch, 1st October, 2014

Crucially, reporters can't escape conviction by claiming that the disclosure was in the public interest.

All they can hope is that the prosecution decides not to bring charges.

Or that the court reduces the sentence.

But as Professor Williams tells Media Watch:

You couldn't imagine many journalists wanting to rely on that when facing 10 years in jail. The problem is that obviously there are situations where the government's interest is vastly different from the public interest and that's usually exactly the stories journalists would want to report on. — Professor George Williams, Director of Public Law, University of NSW, Statement to Media Watch, 1st October, 2014

There is one other possible escape: the court has to be satisfied the disclosure was intentional. But in the Indonesian spying story it clearly was.

MICHAEL BRISSENDEN: On the list of targets is the Vice President, the former Vice President, foreign affairs spokesman, Security Minister and Information Minister... — ABC, News, 18th November, 2013

The court also has to be sure the journalist knew there was a risk that the bugging was 'related to a Special Intelligence Operation

And in this case that's something the AG has refused to reveal.

In future reporters will be expected to ring ASIO's 24 hour hotline to check. Yes really.

But will they do so? Will they be told? And will such stories see the light of day?

Professor Williams fears not, as does lawyer Michael Bradley, writing in The Drum :

The reality is that journalists who value their physical freedom will be scared off from reporting on intelligence operations. — ABC, The Drum, 23rd September, 2014

Matthew Collins QC, one of Melbourne's leading media lawyers echoes that concern and says it will be even harder to report on matters the public should be told about.

I'm aware of numerous circumstances where public debate has already been inhibited by concerns that a story might be legally risky and these kinds of laws only further chip away at media outlets' willingness to take these stories on. — Matthew Collins QC, Media lawyer, Statement to Media Watch, 3rd October, 2014

Now some clearly feel the Indonesian spying story should not have been reported, so let's take a look at some other notable security scoops.

JUANITA PHILLIPS: A Gold Coast doctor suspected of links to the failed British bomb plot is expected to be charged or released within 24 hours. — ABC, News, 13th July, 2007

Back in 2007, Mohamed Haneef was interrogated and held without charge for 12 days by the Australian Federal Police, who suspected him of links to the Glasgow Airport terror attack.

Thanks to revelations in The Australian by Hedley Thomas , who won an award for his reporting, Haneef was ultimately released and compensated by the Australian government.

But would we have learned about his plight had the new law been in place? Thomas told Media Watch:

The national security legislation passed last week, particularly section 35P, would not have prevented my reporting in The Australian on Dr Mohamed Haneef ... — Hedley Thomas, Journalist, The Australian, response to Media Watch questions, 3rd October, 2014

In Haneef's case, ASIO was not directly involved.

And it's unlikely it was related to a special intelligence operation.

But two years later The Australian's Cameron Stewart made waves with another terror-related scoop :

Army base terror plot foiled A plot by Islamic extremists in Melbourne to launch a suicide attack on an Australian Army base has been uncovered by national security agencies. — The Australian, 4th August, 2009

The Australian's story caused a huge fuss at the time, with the AFP and Victorian Police accusing Stewart of putting their operation at risk by reporting the police raids on the day they were to take place.

So does Stewart believe his scoop would have been blocked by the new law?

It is unclear, but because ASIO was also a part of Operation Neath I suspect it could have been declared a Special Intelligence Operation under these new provisions. If so, I don't see how it would have been possible to publish my stories without breaking the law and being liable for jail. — Cameron Stewart, Associate Editor, The Australian, response to Media Watch questions, 3rd October, 2014

And here's another example which the media would have even more difficulty reporting in future.

TONY JONES: ASIO agents apparently treated a terror suspect so badly that the case against him had to be dropped. — ABC, Lateline, 12th November, 2007

Back in 2003 a a 21 year old medical student Izhar ul-Haque was picked up by ASIO agents near his Sydney home.

They had no permission to detain or to question him. But the NSW Supreme Court later heard ...

For almost 10 hours, he was detained, threatened and interrogated, with an Australian Federal Police officer taking notes on the side. ... In a damning judgment, Justice Michael Adams said the two ASIO officers "committed the criminal offences of false imprisonment and kidnapping at common law". — Sydney Morning Herald, 13th November, 2007

Since 2003 ASIO has had the power to detain someone in secret for up to a week and force them to answer questions or face jail, even if they're not terror suspects.

And with Section 35P now in place Sydney Morning Herald political editor Peter Hartcher fears the media would not dare report such cases even if one went drastically wrong.

PETER HARTCHER: You could go to jail for 10 years. So, are you going to report that they've wrongfully arrested, and detained somebody? That they've maybe injured him or killed him in a, in a, in a special intelligence operation and face 10 years in jail? These sorts of things could go undisclosed and unscrutinised. — 702 ABC Sydney, Drive with Richard Glover, 2nd October, 2014

In 2012, as Opposition Leader, Tony Abbott spoke up for freedom of speech against new curbs on the media wanted by Labor.

Rounding off his address to the IPA, he proclaimed:

TONY ABBOTT: But essentially, we are the freedom party. We stand for the freedoms, we stand for the freedoms which Australians have a right to expect, and which governments have a duty to uphold. We stand for freedom, and we'll be freedom's bulwark against the encroachments of an unworthy and dishonourable government. — Tony Abbott, Address to the IPA, 6th August, 2014

Clearly there are good arguments for limiting press freedom in reporting on anti-terror operations.

And similar laws have limited reporting on police undercover ops for some years without anyone being jailed.

Nevertheless, many still feel this new law goes way too far.

GEORGE WILLIAMS: It is important that information often be kept secret. Our national interest requires it. But a law which actually says a journalist might be jailed for up to 10 years for reporting on information that could be in the public interest just strikes me as wrong and inconsistent with basic press freedoms. — ABC Radio National, Law Report, 30th September, 2014

For the last week, journalists and lawyers around Australia have been lining up to condemn the new law.

The Australian Financial Review's International Editor Tony Walker said it will have:

... a chilling effect on reporting of security matters in an environment in which parliamentary oversight provisions are extremely weak. — Australian Financial Review Weekend, 27-28 September, 2014

And he added:

This legislation ... will sit on the statute books like a rotting carcass. — Australian Financial Review Weekend, 27-28 September, 2014

Cameron Stewart, who reports on security matters for The Australian, told Media Watch:

Australians will know less than they deserve to about what is happening inside security agencies at a time when they are larger and more powerful than ever before. — Cameron Stewart, Associate Editor, The Australian, response to Media Watch questions, 3rd October, 2014

And his colleague at the paper, Hedley Thomas told us that while journalists must not put national security and public safety at risk:

Public servants, law enforcement officers and politicians often invoke secrecy to shield their conduct and decisions from legitimate public scrutiny. This should be rejected — Hedley Thomas, Journalist, The Australian, response to Media Watch questions, 3rd October, 2014

Meanwhile, one of the few defences for the new law comes from the editorial columns of Thomas and Stewart's employer, The Australian, which argues:

Homegrown terror threat needs new tools to fight it IT is difficult to comprehend the complaint of some journalists who believe the enemy confronting Australia is the government rather than Islamic militancy. ... The vast majority of Australians want governments to do all they can to guarantee their safety and to eradicate evil. — The Australian, 29th September, 2014

The Australian also asserts the new law will not unduly hamper its journalists from doing their job ...

But ASIO will get other powers over the media that also are causing concern.

The first will give ASIO unprecedented freedom to roam across the media's computer networks, making it much harder for reporters to keep contacts and stories secret

The second will force phone companies and internet providers to store their metadata for two years.

This can tell ASIO who is talking to who and what websites they visit.

And as political commentator Laurie Oakes points out , ASIO and the police already have access to such material

... enforcement agencies can get metadata without a warrant as long as it is for the purpose of enforcing the criminal law or a law that imposes a pecuniary penalty or is for the protection of the public revenue. — Herald Sun, 27th September, 2014

Laurie Oakes knows this from first-hand experience ... back in 2008 he had the AFP investigating him.

Federal police hunt for Laurie Oakes fuel leak source AUSTRALIAN Federal Police are sifting through the telephone records of Daily Telegraph columnist Laurie Oakes to find who leaked Cabinet documents which embarrassed the Federal Government. — The Daily Telegraph, 23rd June, 2008

So is strengthening the law and weakening media freedom part of a trend?

Media lawyer Matthew Collins QC believes it is.

I'm deeply concerned at the culture in Australia which has involved the chipping away of freedom of expression. Once you allow it to be chipped away it becomes very hard to stop it. We've reached a stage where freedom of expression has been quite seriously limited in this country in a way which would simply not be tolerated in countries like the US, the UK or Canada. — Matthew Collins QC, Media lawyer, Statement to Media Watch, 2nd October, 2014

And we'll leave you on that sombre note.

There's more on our website, including a statement from the Attorney-General's department and you can also get a transcript and download the program.

You can also catch up with us on iview. And contact me or Media Watch on Twitter. But until next week, that's all from us, Goodbye.