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Thursday, 26 September 2002
Page: 4976

Senator ELLISON (Minister for Justice and Customs) (11:22 AM) —I thank senators for their contribution on what is a very important bill. We are dealing with the Criminal Code Amendment (Espionage and Related Matters) Bill 2002. I will refer to a number of points made by senators. Senators Faulkner and Kirk reiterated issues raised by a number of people in the other place about the agreement between Australia and the United States concerning security measures for the reciprocal protection of classified information which was signed by the Minister for Foreign Affairs, Mr Downer, and Ambassador Schieffer on 25 June this year. Senator Faulkner has repeated claims which are ill-informed—that the agreement will hinder the access of elected representatives to classified information or that elected representatives would need to be subjected to a personnel security clearance. This is simply not the case. The agreement will not in any way prejudice the existing procedures for access to classified information by parliamentary representatives. The issue was specifically considered at the time of signing the agreement. The continuation of the current practice in relation to parliamentary representatives was expressly confirmed in an exchange of letters by both parties at the same time as the treaty. The letter stated:

In respect of the requirement for security clearances in the agreement, the parties acknowledge the special status of elected representatives at the federal level and confirm their intention to continue to apply their current practices to them.

This information is readily available from the Department of Foreign Affairs and Trade. It was also made crystal clear by the Attorney-General in his speech in reply in the other place, and I suggest that those who want to raise this issue do their homework and have a look at what was said. The new agreement merely updates, simplifies and strengthens a framework for the bilateral exchange of classified information which has been in place and worked well since 1962. It does not change domestic law or policy.

The agreement was tabled in parliament on 27 August this year and considered by the Joint Standing Committee on Treaties on 16 September. Until such time as that committee reports on the agreement, no action will be taken to bring it into force. A national interest analysis summarising the agreement was circulated when the agreement was tabled. May I remind the opposition and Senator Faulkner that it was the Howard government that introduced the Joint Standing Committee on Treaties as part of the Howard government's landmark reforms of Australia's treaty making process in May 1996. I recall it very well because I was the chair of the committee which led to that new process. The result of those reforms is of course a much more transparent process which gives Australians unparalleled input into and opportunity to understand the work of government in making new international laws.

Senator Faulkner also repeated concerns about the ASIO polygraph trials which were raised by the member for Banks, Mr Melham, in the other place. The polygraph trial being undertaken within the Australian Security Intelligence Organisation is still in progress. I can advise the Senate that, as the Attorney-General stated in his press release of 21 September 2000, it is a voluntary trial being undertaken to evaluate the potential of the polygraph as a personnel security tool. For reasons of security, details of the trial are not being made public. I am not aware of any discussions between the Australian and US governments concerning possible requirements for polygraph testing of Australian personnel granted access to classified information released by the US. The ASIO trial commenced in response to recommendations by the Inspector-General of Intelligence and Security, Mr Bill Blick. Mr Blick was commissioned by the Prime Minister to undertake a review of security procedures following the 1999 arrest of a former Commonwealth officer, Jean-Philippe Wispelaere, on charges of attempting to sell highly classified material. ASIO agreed to undertake an internal and voluntary trial of polygraph tests to evaluate the potential of those tests as a personnel security tool.

Senator Greig touched on some of these issues. He outlined the history of Jean-Philippe Wispelaere, who, as I stated, was formerly a Commonwealth officer in the Australian Defence Intelligence Organisation. He of course has been convicted and is serving a sentence in the United States. Senator Greig suggested that Mr Wispelaere's father intends to sue the Australian government, alleging negligence in giving security clearance to his son, on the basis that they failed to detect schizophrenia and his addiction to steroids. Can I say quite frankly that there have not been any proceedings commenced as yet. Of course, if proceedings are commenced then any allegations or claims by Mr Wispelaere's father can be tested in a court of law. Otherwise, the government denies what has been said. We believe that this really is of no great moment.

Senator Greig also raised the question of a prisoner transfer agreement between the United States and Australia. Of course, we have passed the Commonwealth International Transfer of Prisoners Act 1997. That does enable transfer of prisoners between Australia and foreign countries in certain circumstances. However, in order for there to be a transfer between the United States and Australia, we do need to have an agreement. Such an agreement can be addressed in the form of the Council of Europe Convention on the Transfer of Sentenced Prisoners, which will not take effect until 1 January, or we can have a specific agreement between the United States and Australia. As I understand it, from 1 January 2003, transfer of prisoners between Australia and the United States will be possible, subject to terms and conditions established under the convention I mentioned and to each country's domestic legislation. I think that deals with the aspect of transfer of prisoners.

Senator Greig also referred to the lack of whistleblowing provisions in the espionage bill. The bill was never intended to deal with the issue of whistleblowing. Its purpose is to strengthen Australia's espionage laws. The Public Service Act 1999, which commenced on 5 December 1999, introduced a whistleblowing scheme for the Commonwealth public sector. Public servants who want to make a genuine public interest disclosure can make such disclosures to persons who are authorised to receive such disclosures. That was dealt with extensively in that legislation.

Turning back to this bill, this bill establishes an effective legal framework to both deter and punish people who intend to betray Australia's security interests. That is the straightforward intent of this bill. It is a very important one, one that is needed especially in our modern times. As a result of this bill, we will have one of the tightest, strongest pieces of legislation to protect sensitive information among our information exchange partners. This bill will strengthen Australia's espionage laws in a number of ways. The type of activity that may constitute espionage has been expanded. A person may be guilty of an espionage offence if they disclose information concerning the Commonwealth's security or defence while intending to prejudice the Commonwealth's security or defence. They may also be guilty of an offence if they disclose without authorisation information concerning the Commonwealth's security or defence, to advantage the security or defence of another country. Importantly, the new offences will also protect foreign sourced information belonging to Australia. As a result, we can offer greater assurances to our information exchange partners that, when they provide information to us in confidence, we will protect that information in the same way that we protect our own sensitive information. A person who compromises foreign information in our possession will face the same penalty as a person who compromises Australian generated information. The penalties will reflect the seriousness of the offence. As a result of this bill, the maximum penalty for a person convicted of espionage will be 25 years imprisonment.

In addition to strengthening the offence provisions, the bill includes provisions that further support the process of bringing cases of espionage to trial. The most important measure in this regard is to guarantee that only a judge of a state or territory supreme court will decide the question of bail. In addition, I am advised that the Australian Federal Police Commissioner intends to issue an order to all members of the AFP that, as a general policy, bail should be opposed in espionage cases. This will ensure that, wherever possible, those alleged to have committed espionage will not be able to escape the law. This is a very important part of the bill.

The government's amendments to the bill that were moved and passed in the other place responded to recommendations made by the Senate Legal and Constitutional Legislation Committee. The committee made five recommendations, including that the bill progress subject to the other four recommendations. The government has accepted and given effect to the Senate committee's recommendations. I believe that when Senator Harris addressed this bill he was doing it on the basis that we had not accepted those recommendations from the Senate committee. I would remind Senator Harris that we have indeed accepted those recommendations. I want to make that very clear.

When the Attorney-General introduced the bill into the House of Representatives on 27 September 2001, the bill contained provisions dealing with official secrets. It was not debated and lapsed when parliament dissolved for the November 2001 federal election. When the Attorney-General introduced the bill into the House of Representatives again, on 13 March this year, the official secrets provisions were not included in the current bill. Much has been said about this. The official secrets provisions were designed to replicate existing provisions in the Crimes Act in more modern language consistent with the Criminal Code. These provisions were the focus of considerable media attention and were the subject of a considered misinformation campaign. It is very important that I put the record straight. The media suggested that these provisions were designed to limit the freedom of the press and that they would have prevented the reporting of government activities. The media scare campaign suggested that the government was conspiring to plug leaks. This campaign was alluded to by Senators Faulkner and Greig in the debate on this bill. This bill was never intended to deal with the issue of whistleblowing. Its purpose is to strengthen Australia's espionage laws. The government's view—and it is one which is backed up by legal advice—is that there is in substance no difference between the existing provisions of the Crimes Act and those that were intended to replace them. Despite this, to avoid delay in achieving the primary purpose of the bill—to strengthen Australia's espionage laws—the government decided to excise these provisions from the bill. There was nothing more or less to it than that.

The government did so not out of any concession that there was any substance to these misinformed claims. On the contrary, the government did so because the government did not want to hold up the passage of this important legislation. The government decided that for the time being the Crimes Act provisions should stand in their current form. The government is committed to protecting Australia's national security and punishing those who threaten Australia's interests. Through this bill, the government is not attempting to limit the freedom of the press or to plug leaks. This bill is not aimed at hampering or preventing public discussion. This bill is aimed at providing a safe framework for the exchange of sensitive information and will ensure that we have strong laws to punish those who seek to betray Australia's interests. It will also provide protection for Australia's national security and punishment for those who threaten Australia's interests.

This bill is very important for the national interest. It serves Australia well, and I place on record those other points because there has been a good deal of misinformation about this bill and its intention. The intention of this bill is none other than to protect Australia's national interest, and I have outlined how it will deal with that in relation to people who offend the laws against espionage. I thank the opposition and Democrats for their support of this bill, and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.