The attorney general, George Brandis, after some untidy outings in recent times, clearly approached the ABC’s Q&A program on Monday night with an intent to be tidy.



There was, however, a brief incursion into deep abstraction. It wasn’t quite “if a tree falls in a forest”, or “what is life” – but all of a sudden, out of nowhere, Brandis interrogated the concept of disclosure. What was disclosure … exactly?

“If it is a journalist covering what a whistleblower has disclosed, then the journalist wouldn’t fall within the reach of the section because the relevant conduct is the conduct constituting the disclosure, so if the event is already disclosed by someone else and a journalist merely reports that which has already been disclosed, as it was by [Edward] Snowden, then the provision would not be attracted,” Brandis told his Q&A audience in Bankstown.

This reflection will mean nothing to you if you haven’t followed the furore over 35P – the new provision which criminalises disclosure of special intelligence operations.

Actually let me rephrase. If you have followed it, you won’t have actually learned all that much, because Brandis keeps changing his story. This provision has been, variously, nothing terribly much and everything, sometimes in the same outing. It has been a Snowden provision. Then it hasn’t. Then it’s been a provision which catches everyone. Then it’s been a provision that won’t catch journalists because it would be unthinkable that a freedom champion such as Senator the Hon George Brandis QC would give the go-ahead to prosecute journalists.

Then, last night, disclosure wasn’t actually disclosure if a journalist publishes something that is already in the public domain.

Just like in that Snowden case.

Of course this statement from Brandis ignores the basic fact that the Snowden material was not actually in the public domain in any practical sense until the Guardian (and others) published it. The material was secret. Disclosure suggests revealing information that was previously secret.

Edward Snowden did not self-publish his material, he sought a partnership with a media organisation, and the media organisation then disclosed his material to the public.

In the Snowden story I published last year with colleagues Ewan MacAskill and James Ball – a story that revealed that the Australian intelligence agency, then known as the Defence Signals Directorate (DSD), indicated to major intelligence partners that it could share bulk material without some of the privacy restraints imposed by other countries – the material was secret (in the broadly understood sense of that word) right up until it was published.

George Williams, the Anthony Mason professor of law at the University of New South Wales, says he is in no doubt that breaking a story (in the way the Guardian broke many stories from secret material about digital surveillance and intelligence-sharing supplied by Snowden) constitutes a disclosure under the new 35P provision – if, of course, the material related to a “special intelligence operation” (SIO).

Williams said: “I think the section clearly applies to anyone who discloses prohibited information. If it’s the journalist breaking the story, that appears to be what the section is explicitly about.”

The provision says: “A person commits an offence if the person discloses information and the information relates to a special intelligence operation.” Brandis has said repeatedly that his new law is a law of general application, so anyone who discloses the information – who reveals information that is otherwise secret – is caught.

Explanatory notes with the legislation say the following: “The offences apply to disclosures by any person, including for example, participants in an SIO, other persons to whom information about an SIO has been communicated in an official capacity and persons who are the recipients of an unauthorised disclosure of information.”

So, given those facts, Brandis has either changed his story again – or he has abruptly raised a really important definitional point (hitherto missed by the majority of the legal profession) that will be argued vigorously by publishers in any future prosecutions (that the attorney general says won’t happen. Probs).

It’s an interesting point to mull over. But the net effect of the mulling is a distance short of reassuring.

The statement from Brandis on Monday night does more than raise a random point. Quite unintentionally I’m sure, it shines a light.

In an effort to reassure and soothe cranky media folks (well one, anyway – for argument’s sake, let’s call him Lachlan) Brandis has gone to the heart of something very important.

If we accept this latest rationale, media companies are in the clear (possibly) if they republish material that has already been disclosed by someone else (for argument’s sake, let’s call him Julian); but they are not in the clear if they actually do what journalism is supposed to do: apply some of the most important and enduring principles of journalism.

In no particular order, here are those principles. Gain access to material and to people with intricate specialised knowledge about the material; form a relationship; apply rigorous due diligence; establish what is in the public interest to disclose and what is in the public interest to redact – and then set about, in orderly and considered fashion, holding power to account.

Journalists who object to 35P profoundly (and I am certainly one) object to the provision in principle because it has the effect of attacking the core of our function in a liberal democracy.

But it’s not just the principle. I’ve been concerned from the get-go that this provision could have some really perverse consequences. The provision recently passed by the parliament is likely, as the Australian’s Greg Sheridan put it recently to “drive security stories into the hands of extremists, nutters, conspiracy theorists and overseas websites” – because the signal it sends to any would-be whistleblower is don’t trust anyone, and don’t trust media companies.

Any would-be whistleblower will know that in the 35P world, media companies could fold under threats of prosecution, and possibly worse: expose the source. The provision is conceived as a billboard-sized threat. I wouldn’t put the risks in the pejorative way Sheridan framed it, but in the broad, I certainly don’t think he’s wrong.

The new provision won’t stop motivated whistleblowers from disclosing practices that they believe require disclosing, and technology gives people the means to do this anonymously. In the real world, taking matters into their own hands could constitute big dumps of sensitive information online with no redactions, no orderly process of sifting public interest, absolutely no filter.

If you occupy Brandis’s seat at the cabinet table, it is clearly a case of being very careful what you wish for.