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Thursday, 26 September 2002
Page: 4986


Senator BROWN (12:21 PM) —I would like two words to be defined that are not defined by the government in the argument that it is putting. One is `prejudice' and the other is `security'. There has been some concentration on the government's adoption of the word `security' rather than `safety', which is not what the Gibbs review recommended. It would be helpful to know what the government meant by `security'. The other point I want to make here, though, concerns the point just put by Senator Faulkner for the opposition that it is almost absurd or redundant to have this amendment. `Almost' is the very pivotal point. The test should be the public interest.

In the words `prejudicing the security of the Commonwealth', I presume the word `Commonwealth' means `the Commonwealth of Australia' and not `the Commonwealth government of Australia'. That is one thing we need to understand about this at the outset. But we are a pluralistic country and we have a very big range of views about what will prejudice this country and what will not prejudice it. That is what the examples given by the New South Wales Council of Civil Liberties, involving Burma possibly passing information to the United States, are about.

It is very complicated to determine whether or not a person had the intention of subverting the security of the country. Even on recollection, people tend to lose track of what they intended at the time. Of course, to get inside somebody's head to find out whether they intended this or that is a very difficult matter. What is not so difficult is to work out whether what happened was in the public interest or was not. That is why this amendment provides for a much better tool than the government's position, which is that a person presumably has to show that they were not intending to prejudice the interests of the Commonwealth.

At worst this amendment is not in conflict with the government's intention. If it is, I would like to hear how. It is a very necessary amendment to the legislation, because it does bring in that very important test, which is well understood by the courts, of the public interest. I think the opposition ought to think again about it, because it is in no way harmful but in my view it is very beneficial to this legislation and even to the government's intent. If you are leaving the public interest out of the equation it tends to weight things in terms of what the government says is in the interests of the Commonwealth. It will be the government in the court, not the people of Australia as a whole. But when the court is considering the public interest it is the people of Australia as a whole who are being looked at. I think it is very important to include this amendment in the absence of the government's being able to say why this amendment would be not redundant but inimical to the national interest. It is way short of being able to argue that.