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Thursday, 26 September 2002
Page: 4985


Senator ELLISON (Minister for Justice and Customs) (12:13 PM) —The government opposes this amendment because there is no reason for it, because in proposed section 91.1 of the bill the offences of espionage and similar activities are set out. Proposed section 91.1(1)(b) states that a person should do the act `intending to prejudice the Commonwealth's security or defence'. That is a crucial part. It is an essential mens rea or state of mind— the intention of the person—so that you cannot be convicted of these offences unless you intend to prejudice the Commonwealth's security or defence. It follows that, if you were doing something in the public interest, you certainly were not doing it with the intention of prejudicing the Commonwealth's security or defence. If, in the course of the evidence, the defence raised the question that the act was done in the public interest, it would necessarily dispel the required intent to prejudice the Commonwealth's security or defence, because the two could never sit together.

What I say to Senator Brown, through the chair, is that really you do not need this. The defence is there. Senator Brown has questioned whether the court would adjudicate on this; of course this would be determined in a court. There is no question of it being determined anywhere else. I stress again that the prosecution has to prove beyond a reasonable doubt that the person who does the act does so with the intention of prejudicing the Commonwealth's security or the Commonwealth's defence. If, in the course of the evidence, the defence raises the issue that it was done in the public interest, that is a counter to that mental requisite in relation to 91.1. There is just no need for this; it is covered already.