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Thursday, 26 September 2002
Page: 4984


Senator BROWN (12:05 PM) —by leave—I move:

(1) Schedule 2, item 5, page 8 (after line 28), after subsection (2), insert:

(3) It is a defence to a prosecution of an offence against subsection 91.1(1), (2), (3) or (4) where the disclosure of information the person communicates or makes available is in the public interest.

(2) Schedule 1, item 5, page 8 (line 30), note, omit “(1) and (2)”, substitute “(1), (2) and (3)”.

The report of the Gibbs review recognised the importance of protecting whistleblowers in the public interest. The New South Wales Council for Civil Liberties, as we all know, in its excellent submission called for the protection of human rights activists. I ask the minister: how does the bill protect those two groups? To refresh the memory of the committee, on page 2 of its submission the New South Wales Council for Civil Liberties said:

We are concerned that acts of `communicating or making available information that results in or is likely to result in making information available to other countries' will capture acts of whistle blowing. Unless it is more clearly defined, and a defence inserted, publication of information could also make it available to other countries. We recommend a whistle blowing defence, as recommended by the Gibbs committee, is inserted into the bill.

The intention of the provision seems to be to protect our allies from the disclosure of information that prejudices or compromises the operation of their security services by creating an offence of the disclosure of `information concerning the security or defence of another country ... that has been in the possession or control of the commonwealth.'

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.

We believe that the wide definition will serve to make liable to prosecution, activities far beyond those envisaged or intended by the attorney general in his second reading speech. As the actual countries are not defined, if someone gave information about the security arrangements of North Korea to the United States, and that information was in the control or had been in the control of the commonwealth they could face prosecution under this section.

Clearly what we need here—and what is always essential in legislation of any kind, but more particularly in legislation of this kind— is that it says exactly what it means; it leaves no presumption. The New South Wales Council for Civil Liberties kindly provided some examples to concentrate our minds. The first example reads:

The National League for Democracy in Burma has information concerning the operation of Burmese security forces and their intention to execute or imprison pro democracy campaigners in that country.

I know that the Minister for Foreign Affairs will take note of this example, because he is going to be in Burma next week. The example goes on to state:

At the same time the Australian Foreign Minister has been briefed with this information. The national league for democracy, operating in Sydney passes the information to the U.S. Congress and the U.S. State Department so that it might take action against Burma. This could be a clear case of and offence under subsection 4 making the members of the National League for Democracy liable of an offence for which they could be imprisoned for 25 years.

Is that the intention of the government, the opposition or any of us? I think not. These are, of course, hypothetical examples. The second example from the council reads:

It is unclear what constitutes `lawful authority' as referred under the bill. This is absent from the definitions contained in the Bill and subjective in its nature.

ASIO agent X receives information about North Korea's security arrangements, briefs the attorney general and in an act of goodwill and cooperation, passes the information to the United States. Agent X, if the Attorney General decides to prosecute, could be prosecuted for espionage under this provision. The only defence available to Agent X is that he had lawful authority—which is undefined and its meaning open to debate.

As the council points out, we do not have a list of which countries are included. It is a blanket provision. Giving information about the USA or New Zealand ranks exactly the same as giving information about China, Iraq and North Korea, as cited in these examples.

I would like to hear from the minister or from the opposition how they see people caught up in that situation faring. I reiterate that the Gibbs review saw this as a matter of concern. I know that the minister has said that there is nothing different in this legislation. The Greens want to make sure that the matter is cleared up. If it was not clear in the previous legislation, and that is apparently so, we have an amendment to make it clear now. Senator Nettle has drawn that up and I have put it to the committee.

Finally, if a person discloses information which is in the public interest—and obviously a court will have to determine that— ought that not be legitimate? Are we going to trespass into the arena of saying—and this is where Big Brother government comes down the line—that a person acting in the public interest can be jailed? Who but the courts should be the arbiter of that? Is there something inimical about this amendment? I think not. It simply says it is a defence to be acting in the public interest. Does the government not want such a defence? Does the opposition not want such a defence? I would certainly like to hear what their point of view is on that.