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Thursday, 26 September 2002
Page: 4979


Senator BROWN (11:36 AM) —by leave—I move Australian Greens amendments (1) to (5) on sheet 2652:

(1) Schedule 1, item 5, page 6 (line 25), omit “25 years”, substitute “14 years”.

(2) Schedule 1, item 5, page 7 (line 9) omit “25 years”, substitute “14 years”.

(3) Schedule 1, item 5, page 7 (line 24), omit “25 years”, substitute “14 years”.

(4) Schedule 1, item 5, page 8 (line 6), omit “25 years”, substitute “14 years”.

(5) Schedule 1, item 5, page 10 (line 3), omit “Imprisonment for 5 years”, substitute “10 penalty units”.

Before I come specifically to those amendments to the Criminal Code Amendment (Espionage and Related Matters) Bill 2002, I want to comment a little on what Senator Ellison has just said. There are two points of view here, but this debate must be predicated on our common understanding that we currently have extensive laws for dealing with espionage in this country. The question is about the extension of those laws under this legislation. On the last point that the honourable minister was referring to, he said: `There's no difference as far as whistleblowers are concerned. We've effectively made no change under the law.' We are concerned about ensuring that is the case. We are also concerned about the clauses in this bill which are different. We have this legislation in here because it is different to the existing situation. We are concerned with the exploration of those differences: the extension of the term `a threat to Australia's security', under the heading of espionage; the related increased ability for surveillance; and penalties, which are dealt with in our amendment.

As I said in my speech on the second reading, the Attorney-General has wrongly asserted that that the proposed offences in this legislation are consistent with equivalent provisions in the United Kingdom, New Zealand and Canada. Of course, in the United States, which the Attorney-General also mentioned, and as the honourable minister would know, the death penalty applies. It is one of those breaches of the United Nations provisions and international law that the United States persists in having under its own laws. I would submit it is a breach of the United States constitution as well, but several courts in the United States have disagreed with that.

That matter aside—because there is no move in this legislation for the death penalty, thank goodness—we need to then look at what the maximum penalty is elsewhere. We find that it is in fact 14 years in the other countries cited. The Attorney-General said, `Let's move up to the penalty provisions in the United Kingdom, New Zealand and Canada.' Instead of that, he has moved way ahead, to making the maximum penalties for espionage offences 25 years. That is up from the seven years in the current legislation.

Senator Nettle's amendment is saying, `We'll take the Attorney-General at his word.' In our amendments we substitute `14 years' for `25 years'. In our fifth amendment to schedule 1, item 5, page 10, (line 3) we omit `Imprisonment for five years' and substitute `10 penalty units'. Regarding that latter amendment, I reiterate that we believe it is inappropriate to jail people for breaching a suppression order in the stated circumstances. The bill as it stands expands the range of information shielded from public scrutiny. The penalty provision in the bill, which is five years, has the potential to be applied more widely than in the past, and we are concerned about that. There are 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.

It is a difficult matter, isn't it? How much information should come out about our spy organisations? How much should be suppressed? There is an extraordinary range of views on this matter in the Australian community. We are seeing that reflected in this debate here. The Greens believe that there should be an opportunity for scrutiny at the parliamentary and public level of what the spy agencies are doing. We know that they are not immune from doing the wrong thing. We also know that it is necessary to gather information which is in the national interest and to shield us from nefarious influences that may have designs against the national interest.

However, in this case, our amendment deletes the five-year penalty and replaces it with a fine. The Attorney-General was saying, `Let's move into line with the United Kingdom, New Zealand and Canada.' We have looked at the maximum penalty for breaching a suppression order in New Zealand, our nearest neighbour. Their penalty— and this includes espionage offences—is $NZ1,000, which is considerably less than $A1,000. We are saying `10 penalty units', which goes beyond that, but there it should be. We are really concerned about the imprisonment penalty being waved over their heads of citizens who have information which they believe should come to the public notice about the working of spy agencies. They are threatened by a jail sentence of five years, which the government has suddenly brought out of the blue and put into this legislation.

I think it is very important that there be a restraint on this rush to bring in draconian legislation that is out of kilter with penalties in other areas of the law and which is aimed at putting a shield of silence around the operations of our necessary spy agencies. As I said, it is a very difficult matter, but these agencies should not be immune from public surveillance and from media exposure when the wrong thing is happening. Of course, in public debate there should not be a threat of this nature hanging over their heads of journalists or the public alike. It is right out of kilter. I would indeed like to hear the minister's explanation of the five-year penalty and whether he has information different to mine about the penalties for these particular offences which apply in the United Kingdom—pretty well known for its harsh penalties in this area, I might add—Canada and New Zealand.