A controversial section in the ASIO Act, which allows journalists to be jailed for reporting on special intelligence operations, is "arguably invalid" and not proportionate to the threat of terrorism, the security law watchdog has found.
The federal government has confirmed it will implement all recommendations contained in a report by the Independent National Security Legislation Monitor into the impact on journalists of the operation of section 35P of the Australian Security Intelligence Organisation Act.
The report, tabled in parliament on Tuesday, found that so-called special intelligence operations, or SIOs, are necessary and proportionate to the present threats to security.
It found that the statutory and administrative procedures in force are appropriate safeguards against abuse, and that a secrecy provision relating to such operations is not inappropriate.
But the report also found that section 35P is not justified, chiefly because it does not distinguish between journalists and others (outsiders) and ASIO insiders.
"It does not contain adequate safeguards for protecting the rights of outsiders and is not proportionate to the threat of terrorism or the threat to national security," the report said.
"Section 35P is arguably invalid on the basis that it infringes the constitutional protection of freedom of political communication."
The report found that the contentious section would also arguably be inconsistent with article 19 of the International Covenant on Civil and Political Rights, and not in accordance with Australia's international obligations.
The National Security Legislation Monitor has recommended Section 35P be redrafted to treat insiders and outsiders separately.
Attorney-General George Brandis said that "importantly" the monitor agreed that SIOs were necessary in the current environment, and had also supported the continuation of disclosure offences and penalties which protect persons participating in an SIO.
"However, even more safeguards are needed to protect the rights of outsiders in relation to section 35P," Senator Brandis said in a statement.
The government would ensure that an inadvertent disclosure by an outsider would not result in a criminal offence, Senator Brandis said.
A defence of prior publication will also be available to journalists and other members of the community.
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