In 2024, Australian security relies on maintaining a resilient democracy and an underlying strong civil society as much as it does on secrecy to protect sensitive information from foreign or domestic threat actors. For two decades, our public discourse has focused on balancing national security and our freedoms, but that doesn’t need to be a perfect marriage. Our focus should just be on making it work.
The first review conducted by the new Independent National Security Legislation Monitor (INSLM) Jake Blight, Secrecy offences—Review of Part 5.6 of the Criminal Code Act 1995, provides important recommendations for improving our secrecy legislation and laying the foundations for a better relationship between the national intelligence community (NIC) and the media.
The relationship is not always amicable, as shown by the 2019 AFP raids on Annika Smethurst and the ABC, and last year’s reporting on former secretary of home affairs Mike Pezzullo’s proposal to reinstitute a system for issuing D-notices—official requests not to publish.
This is not a new problem. As argued by Melanie Brand in a paper for Australian Historical Studies, Australia’s D-notice system fell into disuse by 1982 as trust and mutual respect between the NIC and journalists eroded. New policies are needed to re-establish trust and reinforce our national security in a threat environment defined by foreign espionage, disinformation and limited public awareness. As Director-General of Security Mike Burgess put it in his 2024 annual threat assessment, ‘Australians need to know that the threat is real. The threat is now. And the threat is deeper and broader than you might think.’
Although national security announcements often grab headlines, Blight’s detailed 300-plus page review of Australia’s secrecy legislation (perhaps unsurprisingly) did not. Nevertheless, it vows a commitment to both national security and democratic freedoms and makes important recommendations to better protect journalistic freedoms.
Many of the INSLM’s recommendations should allay media concerns when reporting on matters of national security. Blight principally assesses whether Australia’s secrecy laws are proportionate, clear, and align with the rule of law. The report makes 15 recommendations, including: removing the classification system as an element of the offence (rec. 1); narrowing the scope of offences to sensitive information (recs. 3, 4); focusing expressly on the communication of sensitive information (recs. 7, 8); and better clarifying an existing legal defence that a reasonable belief in the public interest can be relied upon to avoid conviction when disclosing information, without introducing a general public-interest test (rec. 13).
More simply, Blight provides four general principles for secrecy offences by non-officials (such as journalists, NGOs and members of the public): offences should relate to the communication of information, focus on actual harms, apply only to serious harms and be narrower than offences for officials.
While the INSLM’s review is thorough and commendable, the government should not accept all its recommendations. The proposed change from ‘deemed harms’ to ‘actual harms’ is impracticable. ‘Actual harms’ might not be apparent for a long time (if ever), particularly where foreign intelligence services actively conceal the impact of leaks, or Australian agencies may highly classify ‘actual harms’ to maintain ongoing operational security. The current legislation focuses on risks to operations, capabilities, lives and national security, and creating a severe risk must still be an offence.
Blight also briefly touches upon the introduction of an Australian Defence Security Media Advisory (DSMA) notice system (otherwise known as a ‘D-notice’). As last year’s reporting indicated, and as Blight surmised, ‘there is not a level of trust that would enable a DSMA Notice System to work well in Australia.’
Instead, we need a unique Australian alternative: a consultive body to build a closer working relationship between the media and the national-security community. Policymakers should not be estranged from the fourth estate, particularly when our security environment calls for improved public awareness, discourse and democratic resilience. Experienced national security journalists already demonstrate the utility of collaboration, but an accessible engagement mechanism would further expand journalists’ access to the NIC, boost transparency and improve public perception.
The consultative body would provide journalists with the opportunity to voluntarily discuss received classified information directly with national security and intelligence officials. It should consist of representatives from each NIC agency, overseen by a representative from the Office of National Intelligence.
As opposed to a D-notice system, this body cannot become just a potential source of injunctions. Journalists and relevant NIC representatives could liaise on impending reporting across a range of national security matters, and the NIC representatives could advise of potential risks or provide backgrounding.
It would be incumbent on the NIC representatives to be persuasive, should they believe that reporting needs adjusting. Should this mechanism start to lead towards a series of injunctions journalists would simply—and quite understandably—stop engaging with it.
The NIC is increasingly engaging with journalism, led by Burgess’s annual threat assessment and media appearances. Failure to create a workable mechanism and build a closer relationship between the NIC and the media may come with real national security risks. As noted by former ASIS director-general Paul Symon, national security policy without social licence exposes Australia to disinformation attacks designed to divide and dislocate us.
In such an environment, necessary security policies could be spun into a controversial wedge by foreign actors, or misinterpreted by domestic actors, and ultimately diminish our national security.
