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Writing about an Australian Snowden would land Vulture South in the clink

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Comment Australia isn't just passing a spooks' charter: it's creating a regime in which journalists would be as much at risk as the whistle-blowers whose efforts they chronicle.

Here's the bill, and here's the explanatory memorandum.

In spite of Attorney-General George Brandis' insistence that the government doesn't intend to target journalists with the laws, the legislation itself certainly opens that possibility. For example, the legislation includes provisions “enabling the Minister responsible for Australian Secret Intelligence Service (ASIS) to authorise the production of intelligence on an Australian person who is, or is likely to be, involved in activities that pose a risk to, or are likely to pose a risk to, the operational security of ASIS”.

If ASIS believes an operation has been leaked to a news outlet, it seems trivially easy to make the case that the recipient of the leak is an operational risk.

The new laws also introduce the notion of “special intelligence operations” (SIO). This is a new class of operation, protected by even stronger non-disclosure laws and offering penalties of five to ten years' jail.

“The offences apply to disclosures by any person, including for example, participants in a SIO, other persons to whom information about a SIO has been communicated in an official capacity and persons who are the recipients of an unauthorised disclosure of information”, the explanatory memorandum states.

The special intelligence operation is created by the authorisation of the ASIO's director-general or a deputy director-general. That's it: if ASIO's boss or someone on the rung below him decides that a particular operation deserves special protection, away they go.

The possibilities for clamping down on information are endless.

National security staff and former staff are also targeted, with new laws that would land an Australian Snowden in very hot water indeed.

When considering these proposed laws it is important to understand two things. First, intelligence warrants aren't like other warrants – there's no judge or magistrate sitting in chambers with a brief to uphold the law.

These warrants are issued by the Attorney-General and while today's incumbent may glory in the title of Queen's Counsel, there's no guarantee that the office in future won't have lesser experience, or more inclination to base decisions on political considerations rather than the nation's security.

Second, those deciding what is and isn't a Special Intelligence Operation are all executives. This means everything, from warrants to operational decisions, remain in-house. Independent oversight of their actions (as the UN defines it) will be entirely retrospective.

These provisions concern Vulture South because The Register does, from time to time, encounter sensitive material. If some of us don't write much for a while after such a story, you'll know why. ®

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