It is not easy for journalists to know whether they are complying with this law. Special intelligence operations are by their nature covert, and the information that cannot be disclosed covers these operations and anything that "relates to" them. This means that the ban extends to other, connected operations by ASIO and agencies such as the Australian Federal Police. All this can create doubt in the mind of a journalist about whether they can publish a story. They may decide not to do so on the basis that it is better to be safe than sorry. Governments and agencies can exploit this zone of uncertainty by warning off journalists so as to prevent the publication of compromising information. Brandis has defended section 35P by saying that it is not intended to apply to journalists. If this is the case, it is easy to fix the provision. He should sponsor an amendment that exempts the disclosure of information that is part of a media report in the public interest. Instead, the Attorney General will direct federal prosecutors to consult with him on any charges laid against journalists. He has said that prosecutions against journalists will only proceed with his consent. This is far from satisfactory. The scope of the law should be certain, and not subject to executive discretion. This is a basic facet of the rule of law.

Brandis has highlighted a problem, rather than solved it. Journalists must be free to report on matters of public interest without seeking the permission of the government. They should not operate under the shadow of a jail term that can only be lifted at the discretion of a minister. In any event, Brandis' concession is a frail shield. Although he has made this commitment, will his successors? And will Brandis or future Attorneys General exercise their discretion when a media story is deeply embarrassing to them? After all, what a government may wish to see suppressed can be exactly the sort of information that the community needs to hear. Brandis' response also assumes that the government and the media have the same concept of what journalists ought to be reporting. He has said that section 35P is directed primarily at a "Snowden" type situation. Does that mean he would refuse to shield journalists who report on such revelations? Unfortunately, this problem is not limited to section 35P. It is one among several measures in the new anti-terror bills that compromise freedom of speech, and freedom of the press in particular. Further problems are contained in the foreign fighters bill, which was rushed through Parliament last week. That Bill has a clause similar to section 35P that imposes jail for revealing information relating to delayed-notification search warrants. These enable the authorities to search a person's home without notifying them that this has occurred until a year or more has passed.

The bill extends ASIO's questioning and detention regime, which can subject journalists to five years jail for not revealing their sources to ASIO. Journalists can be jailed for a further five years for reporting on the operation of this regime. Freelance journalists and documentary makers can also be imprisoned for 10 years for entering parts of the world declared by the government to be no-go zones. Jail is also imposed for revealing information about preventative detention orders, and even for certain items of news connected to the recruitment of foreign fighters. The government is right that a very high level of secrecy is justified in many of these areas. Sensitive national security matters should not be reported routinely in the media. On the other hand, there is no evidence that this is occurring now, and no government activity should be immune from investigation and exposure. Sometimes, the secret activities of our law enforcement and intelligence agencies must be subjected to public scrutiny. A blanket prohibition upon disclosure may be good for the government of the day, but it is dangerous for our democracy. George Williams is the Anthony Mason Professor of law at the University of NSW.