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Thursday, 26 September 2002
Page: 4973


Senator BROWN (11:10 AM) —I want to speak on this important bill on behalf of my colleague Kerry Nettle and the Australian Greens. I am grateful to Katrina Willis in Senator Nettle's office for her briefing on the matter as well. We have a different point of view to that of the last two speakers on the matter. The Criminal Code Amendment (Espionage and Related Matters) Bill 2002 substantially widens the scope of Commonwealth activities and information to be kept secret from the Australian public. It does this by expanding the definition of espionage from `activities that may prejudice Australia's safety and defence' to `activities that may prejudice Australia's security and defence'. `Security', of course, is a popular term with governments at the moment.

The bill creates four new espionage offences and extends protection to the operations, capabilities and technologies of, and the methods and sources used by, Australia's intelligence and security services. It will have the widest possible jurisdiction, extending beyond Australia's borders to anywhere in the world. Under this bill it will be an offence to disclose information about the Commonwealth's security or defence with the intention of prejudicing those things, and it will also be an offence to disclose information about the Commonwealth's security or defence to advantage another country's security or defence. Let us put this in context. The government has stated that the bill has its genesis in the arrest and charging of the Australian citizen Jean-Philippe Wispelaere in 1999 with offences relating to the unauthorised disclosure of United States intelligence material. Indeed, the offences relating to disclosure of non-Australian material being held by the Commonwealth are designed to cover such circumstances.

This bill also aims to give the same level of protection to foreign sourced security and defence information belonging to Australia as to Australian information, both in Australia and overseas. We are witnessing another grab for power by the executive and its agencies. Through this extension, the government wants the authority to hide from public view even more information about what it does in the name of protecting our nation's interests. History shows us that governments have a propensity to engage in all manner of activities, including those of a dubious nature, in the name of protecting the nation. Of course, the very great difficulty is where to draw the line between our time-honoured civil liberties and the clandestine works of security agencies, intelligence gathering agencies and the parliament that designs the laws in which they work.

The Attorney-General has said that the bill, if enacted, would create in Australia one of the tightest, strongest pieces of legislation on sensitive information amongst the countries with which Australia exchanges such information, but when you look at it the bill bears all the hallmarks of the government's ill-considered new anti-terror agenda. As with other legislative components of this agenda that have been brought before the parliament in recent months, this bill seeks to give even more power to unaccountable forces, all in the name of protecting the national interest. The government has been doing its best to whip up hysteria about the threats Australia faces. Just this week the Attorney-General, speaking about the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, confirmed there is no specific threat to Australia; yet we are told that we are on heightened security alert all the same.

The Attorney-General warned the parliament to expect more measures to curtail the freedom of citizens. He said:

... as the threat environment evolves, we will need to review the appropriateness of our tools in the fight against terrorism.

The Greens believe that we should be wary about demands from the government for greater protection of its activities from public scrutiny, remembering, of course, that we already have very extensive laws in place both for the surveillance and for the tracking down of people who might be a threat to our security. We should be particularly wary at a time when the government seems to be trying to ready Australians for a war—namely, the Bush led invasion of Iraq. The Australian section of the International Commission of Jurists told the Senate Legal and Constitutional Legislation Committee inquiry into this bill:

Considerable care has to be taken in terms of Security and Espionage Legislation ... in times of war ... when the institutions of our society are under threat ...

The International Commission of Jurists also expressed concern about the scope of the new definitions of espionage that this bill proposes. The definitions of `security' and `defence' are very wide. Likewise, the use of the word `prejudice' is very subjective and difficult to define. The New South Wales Council of Civil Liberties also criticised the definitions, stating that they would include the operations and methods of intelligence security agencies. The council said that this could mean that the exposure of an illegal action by a security agency could fall within the meaning of `an act of espionage'. That means that, in talking about an illegal act being undertaken by an espionage agency, citizens could fall foul of this bill. Human rights watch groups could also find themselves charged and convicted for publicising the security operations of repressive regimes in other countries or publicising human rights breaches by Australian authorities. The Council of Civil Liberties recommended a general defence for whistleblowers and activities of such organisations.

Senator Nettle or I will be moving an amendment in the committee of the whole. We will be further elaborating on how important it is that we have that defence of whistleblowers and the activities of civil rights groups in this country against the potential overreach of this bill. The bill lengthens the maximum term of imprisonment for espionage offences from seven years for similar existing offences to 25 years. That is more than three times the current period. In his second reading speech, the Attorney-General stated:

... the proposed offences are consistent with equivalent provisions in the United States, the United Kingdom, New Zealand and Canada.

He said:

We should regard espionage as seriously as these countries.

Yet with the exception of United States, where the death penalty is applied in some espionage offences—an unacceptable penalty in any circumstances—the maximum penalty for these equivalent provisions in the countries cited is 14 years, not 25 years, as the Attorney-General averred.

Depriving a person of his or her liberty is a most serious matter. Twenty-five years is a very long time to be imprisoned, and the government has proposed no compelling argument in support of substantially extending the maximum term as it is currently laid out. If the government considers it adequate to rely on overseas comparisons for creating these new offences then the overseas terms of imprisonment should also be adequate. They are about half of the term the government is proposing. The Australian Greens will be moving an amendment to make the maximum term of imprisonment 14 years. This retains discretion for a judge to impose a lesser penalty, of course.

This bill retains the existing penalty of the maximum five years in jail for breaching an order by a judge acting in a federal jurisdiction to restrict the publication of and access to evidence relating to an application or other proceeding. But, because this bill expands the range of information shielded from public scrutiny, this penalty provision has the potential to be applied far more widely than in the past. We believe that it is inappropriate to jail anyone for breaching a suppression order in these circumstances. There may be occasions when there is a genuine public interest in disclosing the subject of court proceedings, particularly in the case of what Commonwealth intelligence and security agents are doing in the name of Australians. Putting a jail sentence on this is inappropriate and too harsh. The Australian Greens will be moving an amendment to delete the maximum five years imprisonment penalty and replace it with a fine. This is consistent with practice in New Zealand, where the maximum penalty for breaching a suppression order, including in relation to espionage offences, is $NZ1,000.

Under the bill only a judge in a state or territory supreme court can decide whether to grant bail to a person charged with an espionage offence. The Australian Federal Police Commissioner will issue an order to all members of the AFP that bail should be opposed in espionage cases as a general policy. We do not support that. Depriving somebody of their liberty should be done in exceptional circumstances and should relate to those particular circumstances. We see this bill as part of the government's agenda to crack down on civil liberties through the guise of the so-called war on terrorism. The Australian Greens repeat that there are very extensive existing laws to track down, keep watch on, suppress, arrest and bring to justice people who are engaged in activities which are inimical to the nation. We are extremely wary of the proposals by this government that further limit and truncate the civil liberties of Australians.