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Thursday, 26 September 2002
Page: 4985


Senator FAULKNER (Leader of the Opposition in the Senate) (12:16 PM) —I only caught the end of Senator Ellison's contribution, but I think that fundamentally I agree with the point that he was making to the committee. I think we have to go to division 91 and look at 91.1(1)(b), under the section heading of `Espionage and similar activities':

... the person does so intending to prejudice the Commonwealth's security or defence ...

Then let us go to 91.1(2)(b)(ii):

(b) the person does so:

... ... ...

(ii) intending to give an advantage to another country's security or defence ...

This is the problem that you face here, Senator Brown. Given this intent, it seems to me impossible that you could have a public interest defence. I do not understand how you could have a public interest defence. I make this point to Senator Brown: this proposal emanated from other provisions in the bill which, because of political and media pressure, have been removed. If, for example, there were offences relating to whistleblowers—that is, if the Senate and the parliament were to agree to such a course of action—then obviously a public interest defence would improve the situation. Obviously that is the case.

I understand the spirit of this amendment and I understand where it emanated from, but here it is being applied in a different situation in a different case. I would respectfully suggest to the committee that, when we are dealing with offences where a person commits an offence intending to prejudice the Commonwealth's security or defence or intending to give an advantage to another country's security or defence, a proposal that the disclosure of such information the person communicates or makes available is in the public interest almost becomes a nonsense. I think that intent is absolutely crucial here. Not only that; I acknowledge that this issue evolved with other provisions in the original bill which have now been removed. I really do not think that this amendment is supportable.