intelligence gathering per se. Of greater weight in favour of section 35P is the fact that there have been numerous controlled operations conducted since 2010 without media or other criticism. No submission to this inquiry by or on behalf of a journalist or media organisation said that material was not published because of the controlled operations secrecy sections in the Crimes Act, and no prosecutions have been brought or considered. However, it has only been five years since 2010, and the media and other parties now interested do not seem to have been conscious of the secrecy provisions, and may not have become aware of any controlled operation. Also, informal contacts between police and journalists are routine and may have averted any problem. Neither section 92 nor section 34ZS (referred to in paragraph 23 above) provide a satisfactory precedent for section 35P. Each is a more closely targeted provision, drafted differently from section 35P. Potential harm to individuals is built in to section 92, which applies generally. Section 34ZS does not prohibit disclosure of a broad range of information for all time and furthermore, section 34ZS was not subjected to the close examination that section 35P has received. If that had occurred, problems of the kind identified in relation to section 35P would have emerged. Overseas experience Is section 35P justified by overseas precedents or experience? Analysing the situation in other jurisdictions is difficult. The security landscape varies from place to place, which makes comparisons difficult. No clear or convincing external precedent has been identified. Intelligence operations experience There has been insufficient experience of SIOs from which to draw any relevant conclusions. However, as pointed out, an SIO only varies from other ASIO activities in that illegal behaviour is authorised. ASIO’s position is that an SIO will be reserved for the most serious investigations. The formalities and procedures to be followed before, during and after an SIO and the limitations on conduct that can be authorised support that position. It is also noted that no case has been made that media or other third-party disclosures have compromised other covert ASIO operations over the years.
intelligence gathering per se. Of greater weight in favour of section 35P is the fact that there have been numerous controlled operations conducted since 2010 without media or other criticism. No submission to this inquiry by or on behalf of a journalist or media organisation said that material was not published because of the controlled operations secrecy sections in the Crimes Act, and no prosecutions have been brought or considered. However, it has only been five years since 2010, and the media and other parties now interested do not seem to have been conscious of the secrecy provisions, and may not have become aware of any controlled operation. Also, informal contacts between police and journalists are routine and may have averted any problem. Neither section 92 nor section 34ZS (referred to in paragraph 23 above) provide a satisfactory precedent for section 35P. Each is a more closely targeted provision, drafted differently from section 35P. Potential harm to individuals is built in to section 92, which applies generally. Section 34ZS does not prohibit disclosure of a broad range of information for all time and furthermore, section 34ZS was not subjected to the close examination that section 35P has received. If that had occurred, problems of the kind identified in relation to section 35P would have emerged. Overseas experience Is section 35P justified by overseas precedents or experience? Analysing the situation in other jurisdictions is difficult. The security landscape varies from place to place, which makes comparisons difficult. No clear or convincing external precedent has been identified. Intelligence operations experience There has been insufficient experience of SIOs from which to draw any relevant conclusions. However, as pointed out, an SIO only varies from other ASIO activities in that illegal behaviour is authorised. ASIO’s position is that an SIO will be reserved for the most serious investigations. The formalities and procedures to be followed before, during and after an SIO and the limitations on conduct that can be authorised support that position. It is also noted that no case has been made that media or other third-party disclosures have compromised other covert ASIO operations over the years.