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Thursday, 26 September 2002
Page: 4965


Senator HARRIS (10:29 AM) —I rise to speak on the Criminal Code Amendment (Espionage and Related Matters) Bill 2002. Earlier this month we paid respect to those who lost their lives in New York on September 11. It is said that a lot has changed since that tragic day. Indeed, it has. In a little over a year the laws of our country have fundamentally changed. The antiterrorism legislation passed by the Australian parliament has been deeply disturbing to those who cherish freedom and the Australian way of life. Perhaps the most disturbing change is the government's apparent belief that our society cannot be both safe and free at the same time. Freedom and democracy are the foundations of our country: they define us as a people, they are the source of our strength as a nation and they are our beliefs that thousands of Australians have sacrificed their lives for. Defending those beliefs in times of international crisis is more than an act of patriotism, it is a moral imperative.

The Criminal Code Amendment (Espionage and Related Matters) Bill 2002 extends and toughens the laws against alleged espionage with serious implications for basic democratic rights. Espionage provisions formed part of the Crimes Act 1914 when it was first enacted. Part 7 of the act, then entitled `Breach of Official Secrecy', contained and continues to contain the relevant offences. The act was amended in 1960 to include the current espionage provisions. In 1987 the government established an independent review committee on Commonwealth criminal law chaired by the former Chief Justice of Australia, Sir Harry Gibbs. The review examined part 7 of the Crimes Act 1914. In 1999 the Australian intelligence system and the espionage provisions came under scrutiny when a former member of the Defence Intelligence Organisation, Mr Jean-Philippe Wispelaere, was arrested in the United States and charged with a range of offences associated with the unauthorised disclosure of United States intelligence material. The Commonwealth Inspector-General of Intelligence and Security was commissioned to review security procedures. He reported in 2000 and made more than 50 recommendations. These are not publicly available because of the sensitive nature of many of the measures.

The bill before us today affects Australian espionage laws in four ways. Firstly, the bill refers to conduct that may prejudice Australian security and defence rather than safety and defence, and explicitly defines this term, consequently affording protection to a range of material that may not be protected under the current law. The terms `security' and `defence' will apply to both the espionage offences as well as the existing official secrets offences in section 79 of the Crimes Act.

Secondly, the bill expands the range of activity that may constitute espionage to cover situations where a person discloses information concerning the Commonwealth's security or defence with the intention of prejudicing the Commonwealth's security or defence, or the intention of giving advantage to the security or defence of another country. Thirdly, the bill affords the same protection to foreign sourced information belonging to Australia as it does to Australian generated information. Fourthly, the bill increases the maximum penalty for a person convicted of espionage from seven years imprisonment to 25 years imprisonment.

Turning to the problems of the bill, One Nation has a number of key criticisms. The bill widens the meaning of Australia's defence and security to include the operations and methods of intelligence and security agencies. This means that exposure of an illegal action of a security agency or even the revelation of a security bungle could fall within the meaning of an act of espionage. There are several problems with these new terms. Further, the definition of `security' or `defence' contained in the bill is an inclusive definition; it does not exclude the ordinary meaning of `security' or `defence'. This is a very wide provision and it means that the offences created under it have application for issues of defence which may relate to the defence forces as such or the specific geographic requirements of Australia's defence and are therefore wide and imprecise.

In evidence to the Senate Legal and Constitutional Legislation Committee, the Hon. Justice Dowd, President of the International Commission of Jurists, explained this issue in the following terms:

The use of the word `includes' is a very dangerous drafting technique because it does not define at all; it simply expands. If you are doing something as clearly important as this, you should define it. You have not defined `defence', you have not defined `security' and therefore there are three concepts: security undefined, defence undefined and an expansion of both. That is no way to draft legislation for serious offences such as this; you should in fact define it.

It is in the public interest to discuss the methods and operation of security agencies and under this legislation such discussions will become an offence liable to prosecution.

This is another bill where we see many sweeping definitions. For example, `information' means information of any kind, whether true or false and whether or not in a material form. It includes an opinion or even a report of a conversation. Under the terms of the bill, `information' is not limited to classified information and it could include information that is already in the public domain. The information does not have to be obtained directly from the Commonwealth, it is enough for it to be in its possession or control.

Mr David Bernie, Vice-President of the New South Wales Council for Civil Liberties, has stated that the definition of `information' is extremely broad and does not just relate to classified information. He explained to the Senate Legal and Constitutional Legislation Committee:

I understand there is a system of classification in relation to information. I think if we are going to be dealing with information we should be dealing with classified information. We should not be dealing with information that deals with the amount of tea and biscuits that might be consumed by the Department of Defence or ASIO. It should be about classified information because we are talking about offences here which will have a penalty of imprisonment for 25 years.

An element of the offences relating to espionage and similar activities involves communicating or making known information that is or has been in the possession or control of the Commonwealth. One Nation is concerned that this bill may preclude the release, in the public interest, of information that is not in the public domain. These offences are punishable by imprisonment for 25 years.

The New South Wales Council for Civil Liberties has observed that the Commonwealth obtains a very broad range of information, all of which may be regarded as information for the purposes of the bill. It has said:

Given the wide definition of information this could include ministerial briefings of many kinds to, for example, the defence or foreign minister and as the information is not limited to classified information could include information that is in the public domain in any event. The information does not have to be obtained from the Commonwealth; it is enough for it to be in its possession or control.

Yet again with this bill we see the government trying to introduce the reversal of the onus of proof. Under the proposed legislation, the defendant in a prosecution will be required to prove one of the defences. This is contrary to the fundamental principles of justice under our system of law. As with the antiterrorism bills, the government is attempting to overturn one of our important common law principles and a democratic right—that is, that we are innocent until proven guilty. On this point, the International Commission of Jurists has noted that the bill:

... reverses the criminal onus and is contrary to the overwhelming nature of criminal offences and obliges a person whom may have quite innocently obtained information who [may be] making soundings for quite [l]awful purposes to go into evidence to show that the taking of soundings was lawful. This offence should be presented in the normal form and require the Crown to negative the items included as defences.

Reversing the onus of proof places too much responsibility on the defendant to prove their innocence. The defendant should have all the protection that the law provides, which the common law, as we understand it, has had built into it for hundreds of years.

In conclusion, by passing this bill in its present form the government will seriously erode the public's right to information. This legislation threatens scrutiny of government in Australia. It has potential to stifle public debate and should be withdrawn. One Nation echo the sentiments of thousands of Australians when we say that the government's antiterrorist strategy is badly flawed when it includes attempts to limit the circulation of information generally. Democratic governments should not use the war on terrorism as an excuse to crack down on citizens. The problem with this bill is how these provisions will be applied not only today but also years from now. In the wrong hands, it could be extremely dangerous. If passed in its present form, the bill will seriously erode civil liberties. Key elements of the bill are an overreaction. Coupled with the government's proposal to give ASIO greater powers to detain people, the proposed bill constitutes an insidious threat to our freedom.