News that endangers the security of Australia “should not be fit to print”, Tony Abbott has said, after lawyers warned that planned legislation means journalists could face jail for reporting disclosures about certain spy operations.



The prime minister said the government must “get the balance right” and called on journalists to display “a sense of responsibility”.

National security legislation presented to the Senate on Thursday would expand the powers of the Australian Security Intelligence Organisation (Asio) and create a new offence punishable by five years in jail for “any person” who disclosed information relating to “special intelligence operations”.

The person would be liable for a 10-year term if the disclosure would “endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation”.

Special intelligence operations are a new type of covert operation in which intelligence officers receive immunity from liability or prosecution where they may need to engage in conduct that would be otherwise unlawful. Such operations would be approved by the Asio director general or deputy director general.

Two criminal law barristers, Greg Barns and Shane Prince, said the new offences relating to special operations could allow the prosecution and jailing of journalists who received disclosures about such matters and reported them.

Barns, who is also spokesman for the Australian Lawyers Alliance and has worked for WikiLeaks, said it was “an unprecedented clause which would capture the likes of Wikileaks, the Guardian, the New York Times, and any other media organisation that reports on such material”.

The attorney general, George Brandis, rejected suggestions the government was targeting journalists and told Sky News it was not the purpose of the bill to place constraints on freedom of discussion.

Abbott, when asked about the possibility of journalists facing prosecution, said: “I think it's important that we get the balance right.

“News that endangers the security of our country frankly shouldn't be fit to print and I'd ask for a sense of responsibility, a sense of national interest as well as simply of commercial interest, a sense of the long-term best interests of the country as well as the short-term best interests of creating sensation to be present right across our country including in the media.”

The shadow attorney general, Mark Dreyfus, reacted cautiously to the reports about the potential reach of the laws.

“There are suggestions that the attorney general’s amendments to national security legislation could criminalise some reporting by journalists,” Dreyfus said in a statement.

“Senator Brandis has indicated that criminalising reporting of leaked national security information is not his intention. If Senator Brandis's amendments would criminalise reporting by journalists who receive intelligence information, the government will need to make changes to remove that consequence.”

The Liberal senator Cory Bernardi told the National Press Club the security reforms were a “work in progress” and he believed Brandis was “very receptive to concerns of those who are libertarians, or conservative libertarians, and that don't want to see an all-pervasive government”.

“Let's go back to first principles. One, I think the Australian public and right around the world are right to be suspicious of government and their snooping ability, if I can put it like that,” Bernardi said. “Look at what's happened in Germany, with the NSA in America, across Europe there's been a lot of discussion in this area.

“Secondly, I think we're right to advocate for freedom of the press. We need to make sure the press are free to report within the constraints of what is in, I'd say, the national interest.

“We all know that there are things the press don't report because of security concerns. We have to be reliant on that. People have gone to jail to protect their sources before in the press.”

Bernardi said national security was a critical issue and people had the right to go about their business feeling safe from clear threats, but we “just have to make sure we don't overstep the mark”.

Guardian Australia is seeking more clarity from the government about the practical effects of the special intelligence operation provisions.

The offences relating to the unauthorised disclosure of information are outlined in section 35P of the national security legislation amendment bill, which is set to face parliamentary debate after the winter recess.

The explanatory memorandum to the bill said the offences applied to “disclosures by any person, including participants in an SIO [special intelligence operation], 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, should they engage in any subsequent disclosure”.

These new offences relating to special Asio operations are believed to be modelled on the “controlled operations” regime in the existing Crimes Act.

The explanatory memorandum, in a section on the freedom of expression implications, said the offences would not prevent a person from disclosing information to the inspector general of intelligence and security, an oversight agency.

The document said the offences were necessary to protect persons participating in a special intelligence operations “and to ensure the integrity of operations, by creating a deterrent to unauthorised disclosures, which may place at risk the safety of participants or the effective conduct of the operation”.

The Greens senator Scott Ludlam, who raised concerns about the potential prosecution of journalists, criticised Labor for not supporting his motions to send the bill to the legal and constitutional affairs legislation committee and seek advice from the independent national security legislation monitor.

Ludlam said the government's referral to the joint committee on intelligence and security was inadequate scrutiny because the bill would be “assessed by the very same joint committee that wrote the report in the first place”.

The Liberal Democrat senator David Leyonhjelm said he would oppose most of the proposals outlined in the security bill because the case for additional powers had not been made.

“We do not support increasing intrusion by security agencies and other government bodies,” Leyonhjelm said. “Asio already has enough powers to do its job properly. If it feels it needs additional powers, we believe it reflects poorly on it.”

Brandis told parliament the government's priority was to keep Australia safe but it was proceeding in a “measured and considered way”.

In a broader commentary about his philosophical approach, he told the ABC he had a “very strong predisposition against big government” and would ensure adequate safeguards as the government pursued national security laws.