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Thursday, 26 September 2002
Page: 4967

Senator KIRK (10:41 AM) —I rise to speak on the Criminal Code Amendment (Espionage and Related Matters) Bill 2002. This bill is a worthwhile piece of legislation and it has the opposition's support. Espionage is a very serious crime—one of the most serious that can be waged against the security of a country—and our laws must make that clear. The issue of protecting our national security is one which the Labor Party take very seriously and we certainly support measures which balance the fine line between protecting our nation and its secrets and protecting individual civil liberties. This bill updates Australia's antiquated laws in this area and strengthens the penalties for breaches of the legislation.

A number of matters have recently shone new light on intelligence agencies, not least of all the September 11 attacks which have made the entire world nervous as to the consequences when intelligence fails to predict the horrifying. There was the case of Jean-Philippe Wispelaere, the Australian now serving 15 years in a US prison for espionage, and the case of R v. Lappas, both of which drew attention to our current espionage laws, which were created before the First World War. It is imperative that our parliament craft intelligence legislation carefully and reasonably to have a framework that can punish those who are the actual perpetrators of espionage and to protect the innocence of those who are not.

It was as early as 1991 that the focus on espionage began in the form of the Review of Commonwealth Criminal Law headed by former High Court justice, Sir Harry Gibbs. More recently, there was an inquiry headed by Bill Blick, the Inspector-General of Intelligence and Security. Mr Blick's report confirmed the need to update our espionage laws and to impose tougher penalties on those who break these laws. The report made more than 50 recommendations, which were not made publicly available due to their `sensitive nature'. According to the Attorney-General, this bill `evolved as a result of both the Gibbs and Blick reviews'.

The proposed legislation was originally tabled before the November 2001 election and before I was a member of this parliament. The bill lapsed with the dissolution of parliament but has now reappeared as a very different document. The original bill caused great concern among Australia's press and academia. In addition to the espionage provisions that are in the bill we are considering today, the original bill also transferred the official secrets provisions of part 7 of the Crimes Act 1914 to chapter 5 of the Criminal Code Act 1995. This aspect of the bill was heavily criticised for containing jail terms for secondary disclosure or whistleblowing in relation to non-national security matters, even when the information was disclosed or published on public interest grounds. While Western parliaments have for many years attempted to protect the rights of whistleblowers, it seems as though the mission of this government in its original bill was to punish them. For some reason, it appeared as though the government was nervous about people revealing to the public important issues such as the trials and tribulations of former Minister Reith, his son and his telecard. There was wide concern that journalists could be prosecuted for unauthorised leaks, even if they were in the public interest. The secretary of the journalists union, Chris Warren, in regard to unauthorised leaks said:

[A]n unauthorised disclosure is nothing more than a stage-managed story by a politician. The government is using the ghosts of the September 11 tragedy to revive some very bad laws, which have been dormant for several years.

Academics were also strongly critical of the bill in its original form. For example, Don McMaster in the Australian Journal of International Affairs said:

[T]he proposed legislation is of concern in that, if implemented, it may contravene internationally recognised human rights, including the rights to liberty, fair trial and freedom of association.

Any bill which has the possibility—or, in the case of the original bill, the almost certain probability—of catching innocent people simply to seem tough on crime and terrorism is a particularly dangerous and shameful development. We can fight terrorism without impacting on our individual civil liberties and we can fight terrorism without impacting upon Australia's free and open media.

The report of the review headed by respected former High Court justice Sir Harry Gibbs recommended the decriminalisation of non-security disclosure of information. The government decided to ignore this recommendation despite its claim that the original bill was based on the Gibbs review. The opposition are opposed to any draconian security legislation that unfairly infringes the rights of ordinary Australians such as journalists and ordinary public servants and bars them from revealing government scandals. We applaud the fact that, under considerable public pressure, the government has removed the provisions regarding official secrets from the current bill.

Turning now to the current bill: the opposition believes that the bill in its current form will modernise and strengthen Australia's espionage laws. Now that the sweeping official secrets provisions have been removed and other minor amendments proposed, it can be said that the bill strikes the right balance. Labor supports measures which take a strong and principled stand against terrorism and against espionage, but the government must be wary of going too far and creating an Australia where agencies can too easily interfere with the civil and political rights of individuals. The bill before us today, with the official secrets provisions removed, is a good law for Australia.

The Senate Legal and Constitutional Legislation Committee considered the current bill, and its unanimous report was tabled in May this year. With the more controversial provisions of the original bill removed, the committee supported the legislation but suggested amendments, which the government has agreed to. The committee had four remaining issues of concern with the bill. The first of these was information in the Commonwealth's possession. 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 of the Commonwealth. Concerns were raised about whether information both within the possession of the Commonwealth and in the broader public domain would still technically fall within the offence provisions. The specific concern was that there would be much information now within the public domain that would be unlawful simply because it was once in the possession of the government. While the Attorney-General's Department advised that this was not the intention of the bill, the Senate committee still insisted that this provision be amended. The government has now responded to this concern by proposing an amendment changing this provision and creating a defence against liability if the information was already in the public domain.

The second area of concern of the Senate committee was disclosure of information. The committee also expressed concern, as I said, that there was some uncertainty surrounding the section that stated that it was unlawful to disclose information to `another country or foreign organisation'. The committee was concerned that the proposed offences would inadvertently cover government disclosure of protected information through lawful or official channels such as under the intelligence-sharing agreements that Australia has with other countries. The committee quite rightly saw the flaws in this section, for our intelligence communities need to consult with allies on a regular basis. That essential practice should not be made illegal. Once again, I am pleased to say that the government has altered the bill to the satisfaction of the opposition so as to address this issue.

The third area of concern that the Senate committee had was knowledge of information in the possession of the Commonwealth. The committee shared the concerns of the International Commission of Jurists in evidence that was given to the committee that a person who communicates information to another country not knowing that the information is in the possession or control of the Commonwealth might have committed an offence. The committee recommended that the bill be amended so that an element of each offence is that a person knows that the information is or has been in the possession or control of the Commonwealth. Again, this recommendation of the Senate committee is reflected in the government's amendments.

The fourth and final area of concern that the Senate committee had related to the offence of illegal soundings. The Crimes Act 1914 contains an offence of communicating to anyone outside Australia information on hydrographical soundings of the sea surrounding Australia. The bill proposed to translate that offence across to the Criminal Code Act 1995. In 1991 the Gibbs Review of Commonwealth Criminal Law recommended that, because of the questionable need for the provision in light of technological developments, the sounding offence should be repealed. Despite this recommendation of the Gibbs review, the government chose to retain the offence in the current bill.

The Senate committee took evidence about the unintended application of such an offence—for example, by foreign-owned fishing vessels sending soundings information back to their country of origin and thereby committing an offence. The committee also raised concerns that, where the taking and recording of soundings is required under law, ships' masters were inadvertently potentially committing an offence. The committee therefore proposed that the current provisions relating to soundings be repealed and the bill amended to delete the proposed division 92. The government has agreed not to proceed with the soundings provisions contained in the bill. The government introduced amendments to the bill that substantially give effect to the recommendations of the Senate committee to which I have just referred. The House of Representatives unanimously adopted those amendments.

I turn now to some of the specific provisions in the bill, beginning with the penalties provisions. The Attorney-General has stated that the real purpose of the bill is to increase the penalty for espionage from a maximum of seven years to 25 years in jail. Based on international standards, our penalty for espionage is small. This is compared with the United Kingdom, Canada and New Zealand, which have penalties almost double those of ours. The United States, on the other hand, has penalties that can range from life imprisonment to even death if the offence involves the death of a US agent or if it involves particularly sensitive information. Certainly Australia should not head too far in that direction—and more than trebling our current maximum penalty, as this bill does, is not a particularly desirable outcome. But, hopefully, increasing jail sentences is not the government's sole law enforcement mechanism. However, an increase in penalty is a needed outcome from this legislation to bring it into line with international standards and the penalty created in this bill is, in my view, sufficient.

Another effective change that this legislation will bring about is changing the language of the offence of espionage from conduct that may prejudice Australia's `safety or defence' to Australia's `security or defence'. Using the word `security' rather than `safety' will expand the definition of the offence to cover more material than is currently protected. The parliament's intention is reflected in the words that the legislation contains. We must, therefore, be thorough and attentive to ensure that we have solid language so that the courts can interpret legislation as the parliament intended. The changing of the word `safety' to `security' will not now allow cases to fall through technical cracks. `Security or defence' is defined in clause 90.1 of the bill as including `operations, capabilities and technologies of, and methods and sources used by, the country's intelligence or security agencies'.

This definition did attract criticism from the New South Wales Council of Civil Liberties and the Law Institute of Victoria for the reason that it prevents exposure of illegal activities within security organisations. Despite a lacklustre defence of this definition at the Senate committee hearings by the Attorney-General's Department, this provision remains in the legislation. We must, therefore, be aware that this bill quite generally will prevent information from being leaked from intelligence agencies even if it is in the public interest. In regard to this definition, Michael Head, from the University of Western Sydney, stated in an article in the Alternative Law Journal:

It could apply to the revelation that the Howard government used the DSD to monitor communications with the Norwegian freighter the Tampa during the August-September 2001 confrontation over the government's refusal to allow the ship's rescued refugees to enter Australia.

Despite the criticisms that this definition attracted, the definition should be strong and encompassing. I do not believe that it will substantially interfere with the public interest. Our security organisations need to have a legislative framework for security of their information and this section will provide that.

Another aim of this bill is to offer the same protection to foreign-sourced information belonging to Australia as it does to Australian-generated information. This is important because Australia, having a relatively small intelligence community, must share the resources of our closest allies, and we must ensure that we maintain the integrity and safety of our allies information. Thankfully, Australia has had very few espionage cases over the years—so, while this legislation is important, it is not of immediate concern in a safe, predominantly peaceful country such as Australia. This should not, however, dissuade us from preparing for any eventualities that may occur. We must do this carefully to ensure that we punish the right people in the right way. We must ensure that innocent people are not jailed as a consequence of this legislation, and we should not fast-track this legislation because of recent tragic international incidents.

Espionage is a crime that threatens the security of this country and the continuation of our freedoms. We must ensure against this, as the consequences of espionage could be both dangerous and catastrophic. As mentioned by my colleague Senator Faulkner, the government has recently entered into a legally binding agreement with the United States governing the exchange of information between the two countries. Senator Faulkner pointed out that the foreign minister has said that this agreement will involve a requirement that personnel accessing classified information be security cleared to an appropriate level. The United States uses techniques such as polygraph tests that are not usually used in Australia. I understand that ASIO is currently undertaking a one-year test of polygraphs. I would hope that before these are introduced into this country, parliament will have the opportunity to fully scrutinise their proposed use.

By way of conclusion, it is encouraging that the Attorney-General has, of late, taken a positive approach to this legislation by taking an unacceptable bill and putting it in a workable form. He has done so, firstly, by removing the dangerous elements of the 2001 bill and, secondly, by incorporating the Senate committee's recommendations into appropriate amendments.

Australia needs tough but fair measures to fight crimes such as terrorism which our intelligence community protects us from. This bill in its amended form is now in a form which is both tough and fair. I support the bill and I hope that it will become an effective piece of legislation that can assist in preventing and penalising the dangerous crime of espionage.